[Federal Register: March 31, 1999 (Volume 64, Number 61)]
[Proposed Rules]
[Page 15401-15441]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31mr99-26]
_______________________________________________________________________
Part II
Department of Labor
_______________________________________________________________________
Occupation Safety and Health Administration
_______________________________________________________________________
29 CFR Parts 1910, 1915, et al.
Employer Payment for Personal Protective Equipment; Proposed Rule
DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Parts 1910, 1915, 1917, 1918, and 1926
[Docket S-042]
[RIN No. 1218-AB77]
Employer Payment For Personal Protective Equipment
AGENCY: Occupational Safety and Health Administration (OSHA), U.S.
Department of Labor.
ACTION: Proposed rule; scheduling of informal public hearing.
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SUMMARY: Many Occupational Safety and Health Administration (OSHA)
health, safety, maritime, and construction standards require employers
to provide their employees with protective equipment, including
personal protective equipment (PPE), when such equipment is necessary
to protect employees from job-related injuries, illnesses, and
fatalities.
These requirements are codified in Part 1910 (General Industry
standards), Part 1915 (Shipyard standards), Part 1926 (Construction
standards), Part 1917 (Marine Terminal standards), and Part 1918
(Longshoring standards) of Title 29 of the Code of Federal Regulations.
These requirements address PPE of many kinds: hard hats, gloves,
goggles, safety shoes, safety glasses, welding helmets and goggles,
faceshields, chemical protective equipment and clothing, fall
protection equipment, and so forth. The provisions in OSHA standards
that require PPE generally state that the employer is to provide such
PPE; however, some of these provisions do not specify that the employer
is to provide such PPE at no cost to the employee.
In this rulemaking, OSHA is proposing regulatory language to
clarify that, with only a few exceptions for specific types of PPE, the
employer must pay for the PPE provided. OSHA is proposing to except in
certain circumstances three specific kinds of PPE from this
requirement: safety-toe protective footwear, prescription safety
eyewear, and the logging boots required by 29 CFR 1910.266(d)(1)(v).
OSHA believes that the proposed rule will better implement the
intent of the Occupational Safety and Health Act, make clear who is to
pay for what kind of PPE, and improve protection to employees who must
wear PPE.
The proposed rule would not require employers to provide PPE where
none has been required before. Instead, the proposed rule merely
stipulates that the employer must pay for all required PPE, except in
the limited cases specified above. Since employers already pay for most
of the required PPE, the proposed rule would shift to employers only
the cost of that portion of PPE currently being paid for by their
employees. Based on information from a number of surveys, studies, and
a panel of PPE experts, OSHA believes that, even making worst case
assumptions, this shift in costs from employees to employers will
impose annualized costs of no more than $61.9 million across all
affected industries. To the extent that the proposed rule enhances the
use of PPE, employers will obtain about a three-fold return on their
investment in PPE, i.e., will save an estimated three dollars in injury
and illness costs for every dollar they invest in PPE.
OSHA is also scheduling an informal public hearing to provide
interested parties the opportunity to orally present information and
data related to the proposed rule.
DATES: Comments. Written comments on the proposed standard must be
postmarked by June 14, 1999. Comments that are transmitted
electronically through OSHA's internet site must be transmitted by June
14, 1999. The hearing is scheduled to begin at 9:30 a.m. on June 22,
1999.
Informal public hearing. Notices of intention to appear at the
informal public hearing must be postmarked by June 1, 1999. Hearing
participants requesting more than 10 minutes for their presentations,
and participants who will submit documentary evidence at the hearing,
must submit the full text of their testimony and all documentary
evidence to the Docket Office, postmarked no later than June 14, 1999.
ADDRESSES: Comments. Submit four copies of written comments, notices of
intention to appear at the informal public hearing, testimony, and
documentary evidence to the OSHA Docket Office, Docket S-042, Room N-
2625, U.S. Department of Labor, 200 Constitution Ave., NW, Washington,
DC 20210. (Telephone: (202)693-2350) Please identify the document at
the top of the first page as either a comment, notice of intention to
appear, testimony, or documentary evidence. Comments of 10 pages or
less may be faxed to the Docket Office, if followed by hard copy
postmarked within two days. The OSHA Docket Office fax number is
(202)693-1648.
Comments may also be submitted electronically through OSHA's
Internet site at URL, http://www.osha-slc.gov/e-comments/e-comments-
ppe.html. Please be aware that information such as studies, journal
articles, and so forth cannot be attached to the electronic response
and must be submitted in quadruplicate to the above address. Such
attachments must clearly identify the respondent's electronic
submission by name, date, and subject, so that they can be attached to
the correct response.
Informal public hearing. The hearing will be held in the auditorium
of the U.S. Department of Labor (Frances Perkins Building), 200
Constitution Avenue N.W., Washington, D.C.
FOR FURTHER INFORMATION CONTACT: Ms. Bonnie Friedman, OSHA Office of
Information and Consumer Affairs, Room N-3647, U.S. Department of
Labor, 200 Constitution Avenue, NW, Washington, DC 20210. Telephone:
(202) 693-1999.
SUPPLEMENTARY INFORMATION:
I. Table of Contents
The preamble and proposed standard are organized into twelve
sections as follows:
I. Table of Contents
II. Background
III. Legal Considerations
IV. Summary and Explanation of the Proposed Rule
A. Introduction
B. Reasons Why the Agency Believes that Employers Must Pay for
PPE
C. Scope of the Proposed Rulemaking
D. Current OSHA Requirements Concerning Payment for PPE
E. Advisory Committee on Construction Safety and Health
F. Explanation of Proposed Requirement
V. Issues Pertaining to the Proposed Rule
VI. Preliminary Economic Analysis
VII. Public Participation
VIII. State-plan States
IX. OSHA's Supplementary Statement of Reasons For Its Interpretation
of 29 CFR 1910.132(a)
X. List of Subjects in 29 CFR parts 1910, 1915, 1917, 1918, and 1926
XI. Authority and Signature
XII. Proposed Standards
II. Background
Employees often need to wear protective equipment, including
personal protective equipment (PPE), to be protected from injury,
illness, and death caused by exposure to workplace hazards. Throughout
this document OSHA uses the abbreviation PPE to cover all types of
protective equipment, including personal protective equipment, because
the abbreviation is widely used and understood to include all such
equipment. The abbreviation PPE includes protective equipment that an
employee uses or wears, such as fall arrest systems, safety shoes, and
protective gloves. There are many situations in which PPE is necessary to
protect employees from hazards. For example, protective gloves can protect
hands from lacerations, burns, absorption of toxic chemicals, and abrasion.
Safety shoes protect an employee's feet from being crushed by falling objects.
Respirators can protect employees from being over-exposed to toxic
substances. There are many other examples.
Many OSHA standards require employers to provide PPE to their
employees. Some indicate in general terms when PPE is to be worn, and
what is to be worn (see, for example, Sec. 1910.132). Other provisions
are very specific, such as 29 CFR 1910.266(d)(1)(iv), which requires
chain saw operators to wear protective leggings during specific
operations, and 29 CFR 1910.1027(g), which requires respiratory
protection for workers exposed to cadmium above a certain PEL, and
explicitly states that the employer must pay for the respirator.
OSHA derived its PPE standards from many sources. In its first two
years, OSHA, pursuant to section 6(a) of the OSH Act, adopted many
Federal and national consensus standards dealing with PPE that had been
written by many different standards development committees. OSHA itself
has been issuing both health and safety standards requiring appropriate
PPE for 28 years. Because of the many sources for these standards, the
language requiring the use of PPE has varied.
The language used in OSHA's PPE standards has generally been clear
that the employer must provide the PPE and ensure that employees wear
it. However, the regulatory language regarding the employer's
obligation to pay for the PPE has varied.
OSHA's health standards issued after 1977 have made it clear both
in the regulatory text and in the preamble that the employer is
responsible for providing necessary PPE at no cost to the employee.
See, for example, OSHA's inorganic arsenic standard issued in 1978 at
29 CFR 1910.1018(h)(2) (i) and (j), and the recent respirator standard,
issued January 8, 1998 (63 FR 1152).
The regulatory text and preamble discussion for some safety
standards have also been absolutely clear that the employer must both
provide and pay for PPE. See, for example, the logging standard at 29
CFR 1910.266(d)(1)(iii) and (iv). The logging standard does, however,
make an exception for certain types of logging boots (see 29 CFR
1910.266(d)(1)(v)). In the case of foot protection, such as logging
boots, paragraph (d)(l)(v) of that standard leaves the issue of who
pays for some kinds of logging boots open for negotiation and agreement
between the employer and employee.
On the other hand, the regulatory text of some safety standards has
been less clear. For example, 29 CFR 1910.132(a) is the general
provision requiring employers to provide PPE when necessary to protect
employees. This provision states that the PPE must be provided, used,
and maintained in a sanitary and reliable condition. It does not
specifically state that the employer must pay for it. In some cases,
employers have interpreted this requirement to mean that they must pay
for as well as provide the PPE, while in other cases, employers have
understood this requirement to mean only that they must provide the
PPE.
OSHA attempted to establish a policy and clarify the issue of
payment for required PPE in a memorandum to its field staff dated
October 18, 1994, "Employer Obligation to Pay for Personal Protective
Equipment." OSHA stated that for all PPE standards the employer must
both provide, and pay for, the required PPE, except in limited
situations. The memorandum indicated that where PPE is very personal in
nature and usable by the worker off the job, such as is often the case
with steel-toe safety shoes (but not metatarsal foot protection), the
issue of payment may be left to labor-management negotiations. This
memorandum was intended to clarify the Agency's policy with regard to
payment for required PPE.
Very recently, the Occupational Safety and Health Review Commission
declined to accept as Agency policy the interpretation embodied in the
1994 memorandum as it applied to Sec. 1910.132(a), OSHA's general PPE
standard for general industry, in Secretary of Labor v. Union Tank Car,
OSHRC Docket No. 96-0563. In that case, an employer was issued a
citation for failing to pay for metatarsal foot protection and welding
gloves. The Commission vacated the citation, finding that the Secretary
had failed to adequately explain the policy outlined in the 1994
memorandum in light of several earlier letters of interpretation from
OSHA that were inconsistent with that policy.
OSHA believes that it is important that the employer both provide
and pay for PPE and ensure that employees wear it when necessary. OSHA
believes that this view reflects the direction of the OSH Act and is
consistent with the legislative history. Employers must maintain a safe
place of work in all its aspects, and may not receive a competitive
advantage by failing to pay for necessary safety equipment, including
personal protective equipment. OSHA has considered the requirement for
employer payment in many specific rulemakings and has concluded, based
on the record in each case, that this requirement will increase
employee protection.
The present proposal will also lead to greater consistency among
OSHA standards. Accordingly, OSHA is proposing to require that the
employer pay for all PPE required by OSHA standards, except for safety-
toe protective footwear and prescription safety eyewear that meet all
three of the following conditions: (1) the employer permits such
footwear or eyewear to be worn off the job-site; (2) the footwear or
eyewear is not used at work in a manner that renders it unsafe for use
off the job-site; and (3) such footwear or eyewear is not designed for
special use on the job. Employers are not required to pay for the
logging boots specified in 29 CFR 1910.266(d)(1)(v), as discussed
above.
OSHA believes that the proposed requirement will better protect
employees from work-related illness, injury, and death. Employers are
in a better position to identify and select the correct equipment and
to maintain it properly. They have the financial resources to purchase
PPE of necessary quality and to pay for replacements as necessary. The
statutory reasons for requiring the employer to pay for PPE are
discussed at greater length in the Legal Considerations section of this
preamble, and the health and safety reasons are discussed below, in the
Summary and Explanation section of this preamble.
OSHA preliminarily concludes, for the reasons stated, that the
Agency's standards should clearly require the employer to provide and
pay for PPE. Accordingly, OSHA is proposing such a requirement.
Rulemaking under section 6(b) of the Act will provide for full public
input on all issues. The standard will, once promulgated, provide clear
direction to employers and employees.
OSHA is proposing this requirement for general industry,
construction, shipyards, longshoring, and marine terminals. OSHA has
consulted the Advisory Committee for Construction Safety and Health on
this proposal, as required by the Construction Safety Act.
OSHA requests comments on all relevant issues, including the
specific issues listed in the Issues section of this preamble.
III. Legal Considerations
A. General Authority Under the OSH Act
The Occupational Safety and Health Act and the statute's
legislative history demonstrate that employers are expected to pay the
costs of complying with OSHA's safety and health standards. At section
2(a) of the OSH Act, Congress announced its determination that
occupational injury and illness should be eliminated as much as
possible: "The Congress finds that occupational injury and illness
arising out of work situations impose a substantial burden upon, and
are a hindrance to, interstate commerce in terms of lost production,
wage loss, medical expenses, and disability compensation payments." 29
U.S.C. 651(a). Congress therefore declared "it to be its purpose and
policy . . . to assure so far as possible every working man and woman
in the Nation safe and healthful working conditions." 29 U.S.C.
651(b).
To achieve this end, the Act directs that "employers shall comply
with occupational safety and health standards . . . issued pursuant to
this Act," 29 U.S.C. 654(a) (2), and limits OSHA's enforcement
authority to employers. 29 U.S.C. 658, 659(a). See United Steelworkers
of America v. Marshall, 647 F.2d 1189, 1230-1231 (D.C. Cir. 1980). This
statutory scheme allocates to employers sole legal responsibility for
achieving compliance with safety and health standards. Atlantic & Gulf
Stevedores v. OSHRC, 534 F.2d 541, 533 (3d Cir. 1976). Because
employers are charged with the responsibility for achieving safe and
healthful workplaces, they must bear the concomitant financial
obligation. Id. The Act's terms, including the definition in section
3(8) of an occupational safety and health standard as one which
"requires . . . the adoption or use of one or more practices, means,
methods, operations, or processes, reasonably necessary or appropriate
to provide safe or healthful places of employment," 29 U.S.C. 652(8),
give OSHA broad discretion to devise means to achieve safe and
healthful workplaces and to charge employers for the costs of
reasonably necessary requirements. United Steelworkers, 647 F.2d at
1230-1231.
The employer's general financial responsibility is further
evidenced in the Act's legislative history in the Cotton Dust decision
(American Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 519-
521(1980)), the Supreme Court interpreted the legislative history as
showing that Congress was aware of the Act's potential to impose
substantial costs on employers but believed such costs to be
appropriate when necessary to create a safe and healthful working
environment. Congress thus viewed the costs of health and safety as a
cost of doing business. Senator Yarborough, a co-sponsor of the [Act],
stated:
We know the costs would be put into consumer goods but that is the
price we should pay for the 80 million workers in America . . .
Senator Eagleton commented that:
[the costs that will be incurred by employers in meeting the
standards of health and safety to be established under this bill
are, in my view, reasonable and necessary costs of doing business.
Other Members of Congress voiced similar views (American Textile Mfrs.
Inst., Inc. v. Donovan, 452 U.S. 490, 519-521 (1980) (ATMI) (internal
citations omitted, original emphasis)). See also Forging Indus, Ass'n
v. Secretary of Labor, 773 F.2d 1436, 1451 (4th Cir. 1985) (en banc)
(which stated that, in view of the Supreme Court's "clear statement"
in ATMI about Congress' intent that employers bear the costs of safety
and health, OSHA may logically require employers to pay for hearing
protectors under the hearing conservation standard); S. Rep. No. 91-
1282, 91st Cong. 2d Sess. 4 (1970), reprinted in, Senate Comm. On Labor
and Public Welfare, 92nd Cong. 1st Sess., Legislative History of the
Occupational Safety and Health Act of 1970 (Legislative History) 324,
510-511, 854, 1150, 1188, 1201.
Congress was also concerned that the costs imposed by OSHA rules be
borne fairly by employers within and across all affected industries and
believed that uniform enforcement was crucial to reduce or eliminate
the disadvantage that a conscientious employer might experience where
inter-industry or intra-industry competition is present. Legislative
History at 854; ATMI, 452 U.S. at 521. It also recognized that many
small firms might not be able to make the necessary investment in
safety and health unless all firms were required to do so. Legislative
History at 144. For these reasons, Congress did not intend to allow
individual employers to decide who should pay the costs of complying
with OSHA standards. See United Steelworkers, 647 F.2d at 1236; Forging
Indus. Ass'n, 773 F.2d at 1451-1452.
B. Other Statutory Considerations
In Industrial Union Department, AFL-CIO v. American Petroleum
Institute, 448 U.S. 607 (1980) (Benzene), the Supreme Court ruled that,
before OSHA can issue a new standard, the Agency must find that the
hazard being regulated poses a significant risk to workers and that a
new, more protective, standard is "reasonably necessary and
appropriate" to reduce that risk. The requirement to find a
significant risk does not mean, however, that OSHA must "wait for
deaths to occur before taking any action," id. at 655, or "support
its findings with anything approaching scientific certainty." Id. at
656. "[T]he requirement that a 'significant' risk be identified is not
a mathematical straightjacket." Id. at 655.
The Act allows OSHA substantial latitude to devise means to reduce
or eliminate significant workplace hazards. Clearly, OSHA need not make
individual quantitative or qualitative risk findings for every
regulatory requirement in a standard. Once OSHA has determined that a
significant risk of material impairment of health or well being is
present, and will be redressed by a standard, the Agency is free to
develop specific requirements that are reasonably related to the Act's
and standard's remedial purpose. OSHA standards are often designed to
reduce risk through an integrated system of safety practices,
engineering controls, employee training, and other ancillary
requirements. Courts have upheld individual requirements based on
evidence that they increase the standard's effectiveness in reducing
the risk posed by significant workplace hazards. See Forging Indus.
Ass'n., 773 F.2d at 1447-1452 (finding ancillary provisions of hearing
conservation standard, including requirements for audiometric testing,
monitoring, and employer payment for hearing protectors, reasonably
related to the standard's purpose of achieving a safe work
environment); United Steelworkers, 647 F.2d at 1237-1238 (finding lead
standard's medical removal protection (MRP) provisions reasonable).
Similarly, the courts have held that the Agency must consider other
ancillary provisions that could provide additional protection if the
standard's exposure limits will not eliminate significant risk.
Building and Constr. Trades Dept. AFL-CIO v. Brock, 838 F.2d 1258, 1271
(D.C. Cir. 1988). (Remand to consider including in asbestos standard
additional provisions to reduce smoking-related asbestos risks);
National Grain & Feed Ass'n v. OSHA, 866 F.2d 717, 734-735 (5th Cir.
1989) (directing OSHA to consider extending the action level for clean-
up measures from certain priority areas to the entire facility where
such an extension might further reduce the risk of fire and explosions).
OSHA standards must also be technologically and economically
feasible, and cost effective. A standard is technologically feasible if
the protective measures it requires already exist, can be brought into
existence with available technology, or can be created with technology
that can reasonably be expected to be developed. ATMI, 452 U.S. at 513.
A standard is economically feasible if industry can absorb or pass on
the cost of compliance without threatening its long term profitability
or competitive structure. ATMI, 452 U.S. at 530 n.55.
A standard is cost effective if the protective measures it requires
are the least costly of the available alternatives that achieve the
same level of protection. ATMI, 452 U.S. at 514 n.32; International
Union, UAW v. OSHA, 37 F.3d 665, 668 (D.C. Cir. 1994). Finally, if OSHA
promulgates a rule that differs substantially from an existing national
consensus standard, the Agency must publish in the Federal Register a
statement of reasons why the rule adopted will better effectuate the
purposes of the Act than the national consensus standard. 29 U.S.C.
655(b)(8).
C. Historical Overview: OSHA's Determinations in Prior Rulemakings That
Employers Should Pay for Necessary Personal Protective Equipment
Since 1978, OSHA has promulgated many occupational health and
safety standards explicitly requiring employers to furnish personal
protective equipment "at no cost to employees." 1
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\1\ See 29 CFR 1910.95(i)(1), (i)(3) (hearing conservation); 29
CFR 1910.1001(g)(1), (g)(2)(i), (h)(1) (asbestos); 29 CFR
1910.1018(h)(1), (h)(2)(i), (j)(1) (inorganic arsenic); 29 CFR
1910.1025(f)(1), (g)(1) (lead); 29 CFR 1910.1027(g)(1), (i)(1)
(cadmium); 29 CFR 1910.1028(g)(1), (g)(2)(i), (h) (benzene); 29 CFR
1910.1030(d)(3)(i), (d)(3)(ii) (bloodborne pathogens); 29 CFR
1910.1043(f)(1), (f)(3) (cotton dust); 29 CFR 1910.1044(h)(1),
(h)(2), (h)(3)(i), (j)(1) (1,2-dibromo-3-chloropropane); 29 CFR
1910.1045(h)(2)(i), (j)(1) (acrylonitrile); 29 CFR
1910.1047(g)(2)(i), (g)(4) (ethylene oxide); 29 CFR 1910.1048(g)(1),
(h) (formaldehyde); 29 CFR 1910.1050(h)(2)(i), (i)(1) (4,4,
methylenedianiline); 29 CFR 1910.1051(h)(1), (i) (1,3-butadiene); 29
CFR 1910.1052 (g)(1), (h)(1) (methylene chloride); 29 CFR
1910.146(d)(4)(iv) (confined spaces); 29 CFR 1910.156(e)(1)(i) (fire
brigades); 29 CFR 1910.266(d)(1)(iii), (d)(1)(iv),
(d)(1)(vi),(d)(1)(vii) (logging). See also OSHA's recently revised
respiratory protection standard, promulgated January 8, 1998, 63 FR
1271.
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In these rulemakings, OSHA has stated that language explicitly
requiring that PPE be furnished without cost to employees is necessary
to effectuate the purposes of the Act and to "clarif[y] OSHA's
position which has long been implicit in health standards
proceedings." See, e.g., 42 FR 27387 (June 23, 1978) (cotton dust
preamble); 43 FR 11523 (March 17, 1978) (dibromo-3-chloropropane
preamble); 52 FR 46266 (Dec. 4, 1987) (formaldehyde preamble). OSHA has
also concluded in its rulemaking on the Cancer Policy that personal
protective equipment should be treated no differently from engineering
controls for the purposes of cost-allocation (45 FR 5261, Jan. 22,
1980):
The requirement that employers pay for protective equipment is a
logical corollary of the accepted proposition that the employer must
pay for engineering and work practice controls. There is no rational
basis for distinguishing the use of personal protective equipment
[from other controls]. The goal in each case is employee protection;
consequently the responsibility of paying for the protection should,
in each case, rest on the employer.
OSHA has further determined that requiring employers to pay for
personal protective equipment contributes to increased health and
safety protection in several ways. The employer is most knowledgeable
about hazards existing in the workplace and is therefore best able to
select and maintain appropriate protective equipment. Requiring
employers to purchase personal protective equipment ensures that they
retain control over the selection, issuance, maintenance, and use of
the devices. See 43 FR 19619 (May 5, 1978) (inorganic arsenic
preamble); 46 FR 4153 (hearing conservation preamble). Shifting the
financial burden to employees, on the other hand, "risks losing the
necessary control over the organized and consistent selection,
issuance, maintenance and use of such equipment." 46 FR 4153 (hearing
conservation preamble).
OSHA has also concluded that charging employers with the cost of
personal protective equipment, as well as other requirements imposed by
standards, is necessary to ensure the employee's voluntary cooperation
in the employer's safety program. In requiring employers to pay for
hearing protectors as part of the hearing conservation standard, OSHA
relied upon the testimony of the director of the Safety and Health
Department of the International Brotherhood of Teamsters:
[an] employer's attempt to require its employees to purchase
their own personal ear protective devices would cause resentment
among the workers and clearly demonstrate to them the lack of
commitment on the part of their employer in preventing hearing loss.
Such a requirement would discourage the use of ear protective
devices and would create an adversarial atmosphere in regard to the
hearing conservation program. 46 FR 4153 (emphasis added).
OSHA has found that the need to ensure voluntary cooperation by
employees was also an important reason to require employers to pay for
other protections in standards, including medical examinations and
medical removal protection (MRP). In promulgating the lead standard,
OSHA relied upon extensive evidence that employees' fears of adverse
economic consequences from participation in a medical surveillance
program could seriously undermine efforts to improve employee health.
43 FR 54442-54449 (Nov. 21, 1978). OSHA cited data from numerous
sources to show that employees' concerns about the possible loss of
income would make them reluctant to participate meaningfully in any
program that could lead to job transfer or removal. Id. OSHA
promulgated the lead standard's M.R.P. provision "specifically to
minimize the adverse impact of this factor on the level and quality of
worker participation in the medical surveillance program." Id. at
54449.
Courts have upheld OSHA's statutory authority to charge employers
with the costs of complying with standards and have affirmed the
Agency's findings of benefits accruing from this requirement. In
reviewing the lead standard, the D.C. Circuit found that "[the] scheme
of the statute, manifested in both the express language and the
legislative history . . . appears to permit OSHA to charge employers
the cost of any new means it devises to protect workers." United
Steelworkers, 647 F.2d at 1231. The court found reasonable OSHA's
determination that wage retention and other M.R.P. benefits were
necessary in view of employee resistance to programs that could result
even in limited loss of earnings. Id. at 1237. Moreover, the court
found that OSHA could legitimately consider benefits that were more
indirect. It upheld the standard's requirement that employers pay for
medical opinions from physicians who are selected by employees, in part
because employees will be more likely to cooperate in, and improve the
accuracy of, medical examinations performed by physicians they trust.
Id. at 1239. See also Forging Indus. Ass'n, 773 F.2d at 1451-1452
(upholding the requirement in the hearing conservation standard that
employers pay for hearing protectors).
Some have suggested that employee payment for PPE helps encourage
employees to maintain their PPE properly. OSHA notes that employees,
because their own safety is at stake, already have significant
incentives to assure that PPE is maintained in a manner that assures
that the PPE will function safely. Requiring employee payment for PPE
could encourage employees to consider a trade-off between assuring the
safety of the PPE and assuring its longevity, even though the PPE may
be worn or damaged to the point that it no longer functions properly.
Employee payment could also lead to perverse incentives for employers.
Given a choice between engineering controls that the employer must pay
for, and PPE that would be paid for by employees, employers would have
a strong incentive to use PPE even though engineering controls would be
more protective and might even be cheaper. OSHA views the theoretical loss
of some employee incentive to maintain equipment as minor compared to
the importance of assuring employers provide a safe and healthy
workplace.
D. The Proposed PPE Revisions Comply With Statutory Criteria
OSHA believes that the proposed PPE revisions readily comply with
the statutory criteria outlined above. In the Agency's view, the
proposed language that, with certain exceptions, employers must provide
personal protective equipment under existing standards "at no cost to
employees," does no more than clarify a requirement legally implicit
under the Act. Congress itself intended to impose the costs of safety
and health on employers and charged employers with sole responsibility
for compliance with standards. ATMI, 452 U.S. at 520-5211; United
Steelworkers, 647 F.2d at 1231. The requirement that employers pay for
the means necessary to achieve compliance is implicit in the statute
itself, and therefore, is properly an implied term of every
occupational safety or health standard.
Based on the OSH Act's implicit cost-allocation scheme, OSHA has
interpreted standards requiring employers to "provide" personal
protective equipment to mean that this equipment must be furnished to
employees at no charge. For example, OSHA has interpreted the coke oven
emissions standard, 29 CFR 1910.1029(h)(1), which states that "the
employer shall provide and assure the use of appropriate protective
clothing and equipment," to require that personal protective equipment
be furnished at no charge to coke oven workers. The Occupational Safety
and Health Review Commission held that interpreting "provide" to mean
"pay for" was consistent with the statutory intent and with the
Agency's prior published interpretation. Secretary of Labor v. Erie
Coke Corp., 15 O.S.H. Cas. (BNA) 1561, 1563-1565 (Review Comm. 1992).
OSHA has also interpreted its general personal protective equipment
standards to require that equipment be furnished at no cost to
employees. In 1994, OSHA issued a compliance memorandum entitled
"Employer Obligation to Pay for Personal Protective Equipment." In
this compliance memorandum, OSHA interpreted 29 CFR 1910.132, 29 CFR
1926.95, and other PPE standards to require employers to provide PPE at
no cost to employees, except where the equipment is personal in nature
and usable off the job.
OSHA recognizes that the Occupational Safety and Health Review
Commission has subsequently rejected OSHA's policy interpretation of 29
CFR 1910.132 as requiring employer payment for PPE. See Union Tank Car
Co., OSHRC No. 96-0563 (assuming the 1994 memorandum represented a
change in position, and finding that OSHA had not presented an adequate
justification for the change).
Section IX of this preamble, OSHA's Supplementary Statement of
Reasons for its Interpretation of 29 CFR 1910.132(a), contains a
detailed explanation of OSHA's interpretation of section 1910.132(a),
which addresses in detail the Commission's concerns and demonstrates
that the Agency's reading of its general personal protective equipment
standard is consistent with the statutory scheme and is reasonable.
In OSHA's view, the proposed rule simply clarifies the employer's
pre-existing obligations under the personal protective equipment
standards. See Edison Elec. Inst. v. OSHA, 849 F.2d 611, 620 (D.C. Cir.
1988); OSHA's Supplemental Statement of Reasons. Assuming, however,
that the language in existing Sec. 1910.132 does not clearly convey a
requirement for employer payment, the proposed rule is necessary and
appropriate to conform the standard to the requirements of the statute
and to the position the Agency has consistently adopted in rulemaking
proceedings for more than twenty years.
The Agency believes, moreover, that implementation of the proposed
revisions will contribute in a significant way to a safer work
environment. The existing PPE standards reflect a determination that
the use of PPE is necessary to reduce a significant risk of
injury.2 OSHA considers the proposed revisions to be
ancillary requirements of the existing PPE standards. They are
reasonably related to the existing standards' purpose of preventing
injury by requiring the provision and use of appropriate personal
protective equipment.
---------------------------------------------------------------------------
\2\ For existing standards adopted as national consensus or
established Federal standards pursuant to section 6(a) of the Act,
the determination of significant risk is implied in Congress's
direction that such standards should be promulgated as
"occupational safety or health standard[s]." 29 U.S.C. 655(a). The
Court in Benzene interpreted the definition of "occupational safety
and health standard" in section 3(8) of the Act to mean a standard
that addresses a significant risk of harm. 448 U.S. at 639-642.
---------------------------------------------------------------------------
Moreover, OSHA believes that the principle expressed in National
Grain and Feed, discussed above, provides analogous support for this
proposed rule. In amending 29 CFR 1910.132 in 1994 to include new
requirements for, among other things, hazard assessments and employee
training, the Agency examined PPE use in general industry. OSHA found
that, although the standard had been in effect since 1971, the data
demonstrated that a significant risk of injury attributable to the non-
use or misuse of PPE remained. See 59 FR 16335 (April 6, 1994). OSHA
determined that compliance with the final rule would result in more
widespread acceptance and use of appropriate PPE, and would, therefore,
significantly reduce the risk of injury. However, OSHA did not find
that compliance with the rule would eliminate the significant risk due
to the non-use or misuse of PPE. As discussed below, there is evidence
that requiring employers to pay for PPE will result in a further
substantial reduction in the risk of non-use or misuse of PPE by
centralizing the control over PPE programs, and by eliminating economic
disincentives to the voluntary use of PPE. Cf. National Grain and Feed,
866 F.2d at 735.
As OSHA found in promulgating the hearing conservation standard,
requiring employers to pay for personal protective equipment ensures
that employers retain control over the selection, issuance,
maintenance, and use of such equipment. OSHA believes that ensuring
centralized control over these critical functions promotes a more
organized and consistent approach to personal protective equipment
requirements. See 46 FR 4153 (Jan 16, 1981). See also 43 FR 19619
(Inorganic Arsenic) (May 5, 1978).
OSHA also believes that employees are more likely to cooperate in
achieving full compliance with existing standards if protective
equipment is provided at no charge. The evidence adduced during the
rulemaking for the lead standard demonstrated that many employees would
be reluctant to participate fully in a program that could result in a
loss of income. OSHA believes that this problem is not limited to MRP
provisions. In Secretary of Labor v. Phelps Dodge Corp., 11 O.S.H. Cas.
(BNA) 1441, 1443 (Rev. Comm. 1983), the Review Commission held that the
employer did not provide medical examinations under the Inorganic Arsenic
standard "without cost to the employee" when it allowed employees to
take examinations only during their free time and did not reimburse
them for travel expenses or the time consumed in taking the
examinations. The Commission noted the ALJ's finding that when
employees were required to provide their own transportation to and from
the hospital and to sacrifice their personal time to take examinations,
42% of them failed to participate.
Such evidence, showing that employees often make decisions that
risk their health and safety to avoid suffering economic loss, is
relevant to the proposed revision. It is certainly reasonable to
believe that employees who are furnished personal protective equipment
at no charge are more strongly motivated to wear it, and to replace it
promptly when worn or damaged, than are employees who must purchase
such equipment. Indeed, OSHA is aware of evidence presented in
enforcement litigation that employees have continued to use worn-out or
defective items of personal protective equipment because of the cost of
replacing this equipment. In the Union Tank case, the employee
representative presented an affidavit that some employees taped or
wrapped wire around their damaged metatarsal safety boots in order to
avoid having to pay up to $130 per pair to replace them. Similarly, in
Ormet Primary Aluminum Corp., OSHRC Docket No. 96-0470, an employee
testified that he continued to wear safety boots, even though the
protective steel toes were exposed and posed an electrocution hazard,
because he could not afford a new pair. The employee also testified
that some workers put a cement-like substance over the steel toes of
their boots when the leather covering wore away, but that this practice
was hazardous because the substance was flammable.
Based on the available evidence, OSHA preliminarily concludes that
the proposed revisions will significantly enhance compliance with
existing standards. OSHA estimates that the proposed rule will prevent
over 47,000 injuries that occur annually as a result of the non-use or
misuse of personal protective equipment, including seven fatal
injuries. See Section VI., Preliminary Economic Analysis.
OSHA has also preliminarily concluded that excepting safety-toe
footwear and prescription safety eyewear from the payment requirement
is appropriate and does not conflict with the legislative intent. OSHA
has long taken the position that employers should not be required to
pay for safety-toe footwear because it is personal in nature and
frequently worn off the job. See The Budd Co., 1 O.S.H. Cas. (BNA) 1548
(Rev. Comm. 1974). OSHA believes that prescription safety eyewear
shares these characteristics. Because of the special nature of safety-
toe footwear and prescription safety eyewear, the statutory and policy
reasons for requiring employers to pay for other types of PPE do not
carry the same weight for these types of PPE 3. OSHA
believes that there is little statutory justification for requiring
employers to pay for such personal equipment if it is used away from
the workplace and if all three of the proposed conditions are met: (1)
The employer permits the footwear or eyewear to be worn off the job-
site; (2) the footwear or eyewear is not used at work in a manner that
renders it unsafe for use off the job-site; and (3) such footwear is
not designed for special use on the job.
---------------------------------------------------------------------------
\3\ In her brief to the Commission in Budd filed in 1973, the
Secretary stated her interpretation that 29 CFR 1910.132(a) does not
require employers to pay for safety shoes. The Secretary noted that
"safety shoes are purchased by size, are available in a variety of
styles, and are frequently worn off the job, both for formal and
casual wear. Furthermore, it is neither feasible for a different
employee to wear the shoes each day nor feasible that upon resigning
from the position an employee will leave the shoes behind to be worn
by another individual." See Section IX., OSHA's Supplemental
Statement of Reasons For Its Interpretation of 29 CFR 1910.132(a).
---------------------------------------------------------------------------
The Commission and one court of appeals have agreed with the
Secretary's interpretation that 29 CFR 1910.132(a) does not require
employees to pay for safety shoes. The Budd Co. O.S.H. Cas. (BNA) 1548
(Rev.Comm. 1974); 513 F.2d 201, 205 (3d Cir. 1975). See also United
Steelworkers, 647 F.2d at 1231 n.66 (noting special character of
safety-toe protective footwear which the employee would wear off-the-
job as well as on-the-job). Moreover, OSHA's logging standard (see 29
CFR 1910.266 (d)(1)(v)) provides analogous support for the proposed
exceptions for safety shoes and prescription safety eyewear. OSHA
excepted logging boots from among the types of equipment that employers
must provide at no cost under the logging standard, based in part on
evidence that logging boots are personal in nature and used away from
work. See 59 FR 51684 (Oct. 12, 1994). See also section IX., OSHA's
Supplementary Statement of Reasons for its Interpretation of 29 CFR
1910.132(a). The three conditions OSHA is proposing to apply to the
exception for safety-toe footwear and prescription safety eyewear all
relate to off-site use. For example, if the employer prohibits off-site
use of the footwear or eyewear, employees would clearly not be able to
wear it off the job, and the exception would not apply. Similarly, if
the footwear or eyewear is used at work in a way that makes it unsafe
for use off the job, e.g., safety-toe footwear is worn in a lead
chromate pigment plant, it would be unsafe for the employee to wear it
at home, and the exception would not apply. Finally, if the footwear or
eyewear is designed for special use on the job, e.g., the eyewear is
built into a welding mask, or the footwear has built-in metatarsal
guards as well as safety-toes, it could not be worn off-site, and the
exception would not apply.
If one or more of these conditions is not met for safety-toe
footwear or prescription eyewear, the exception for these types of PPE
does not apply, and the employer would be required to pay for the PPE.
For these reasons, OSHA has preliminarily concluded that employers
should not be required to pay for safety-toe protective footwear and
prescription safety eyewear, provided that all three of the excepted
conditions are met. However, as discussed in other sections of this
document, OSHA seeks comment on whether these exceptions, and the
conditions restricting their applicability, are appropriate and whether
other types of personal protective equipment should be excepted or
other limiting conditions should be considered.
OSHA believes that compliance with the proposed standard is
technologically feasible because the PPE affected by this rulemaking
has already been shown to be technologically feasible in numerous other
rulemakings, e.g., OSHA's 1994 PPE rulemaking and the individual
rulemakings requiring particular types of PPE (e.g., fall protection in
construction, and various shipyard employment standards). The affected
PPE, as shown by the record evidence in these rulemakings, is widely
manufactured, distributed, and used in workplaces in all industries.
OSHA believes that the proposed standard is also economically feasible
because the PPE of concern has been shown to be economically feasible
in the earlier rulemakings referred to above and, additionally, for
this proposed rule, as detailed in Section VI., Preliminary Economic
Analysis. The proposed rule merely shifts some costs previously borne
by employees to their employers. Indeed, in its economic analyses of other
rules requiring PPE, OSHA has always assumed that PPE would be paid for
by the employer. The Preliminary Economic Analysis also indicates that to
the extent that, the proposal enhances PPE use, employers will save money
because their employees will avoid the injuries and illnesses that would
otherwise continue to occur from the improper use of PPE. Finally, this
preamble explains why the proposed regulatory text will enhance safety
protection for workers and will better effectuate Congress' intent that
employers pay for the costs of compliance with OSHA standards. 29
U.S.C. 655(b)(8). Accordingly, the proposed standard complies with all
applicable statutory criteria.
IV. Summary and Explanation of the Proposed Rule
A. Introduction
OSHA is proposing to revise its standards requiring employers to
provide PPE to clarify that the employer must pay for the PPE, except
for safety-toe footwear and prescription safety eyewear that meets all
three conditions--the employer permits off-site use, the footwear or
eyewear is safe for off-site use, and the footwear or eyewear is not
designed specially for on-site use. The logging boots required by 29
CFR 1910.266(d)(1)(v) are also excepted from the employer payment
requirement. This proposal applies to standards in the following
industry sectors: general industry, construction, and maritime
(including shipyards, marine terminals, and longshoring operations). It
does not apply to agriculture.
The Agency believes that requiring employers to pay for PPE is
central to the effective implementation of the Act. As noted earlier in
this preamble, OSHA is using the abbreviation PPE to cover all
protective equipment, including personal protective equipment, that is
provided to employees to protect them from workplace hazard. However,
some inconsistent statements and interpretations by OSHA over the years
regarding the Agency's PPE payment policy, and the recent Union Tank
decision by the Review Commission, have now made it difficult for the
Agency to uniformly enforce this policy.
Therefore, OSHA is proposing to resolve this issue by clearly
identifying, through regulation, who is required to pay for PPE. OSHA
intends this rulemaking to lead to the consistent application of the
Agency's protective equipment requirements throughout the regulated
community and by Agency compliance personnel. The rulemaking process
will also give interested parties an opportunity to participate in the
Agency's decisions through written comments and informal public
hearings.
The following discussion presents the Agency's reasons and
preliminary conclusions regarding the proposed revisions to its PPE
standards, and explains the proposed requirements.
B. Reasons Why the Agency Believes That Employers Must Pay for PPE
1. The OSHAct. The Occupational Safety and Health Act of 1970
requires employers to provide a safe and healthful workplace for their
employees. This mandate includes the financial obligation of employers
to provide controls to address hazards that could cause injury or
physical harm to their employees. (See the Legal Considerations section
of this preamble for a more detailed discussion of the employer's
obligation to pay for workplace protections.)
2. PPE is also a hazard control measure. Most standards require
employers to implement engineering controls, such as ventilation or
barriers, and administrative controls, such as regulated areas or
danger zones, because these are typically thought to be the primary
ways to reduce hazardous exposures to employees. There has never been
any doubt that employers pay for these controls.
PPE is another type of control measure that is often necessary to
reduce exposures to health and safety hazards. In many cases, PPE use
supplements engineering, work practice, and administrative controls
where such controls do not provide adequate protection. In some
circumstances, such as in some maintenance work, PPE is used as the
sole or primary means to protect employees. Consequently, it is
appropriate for OSHA standards to require employers both to implement
and to pay for PPE as a hazard control measure, just as they must do
for engineering and administrative controls.
OSHA standards require many different types of PPE to protect
employees from the variety of hazards in the workplace. Table I
indicates the kinds of PPE required by OSHA standards.
Table I.--List of Personal Protective Equipment
------------------------------------------------------------------------
-------------------------------------------------------------------------
Personal fall arrest system
--Safety belts.
--Body belts.
--Lifelines.
--Lanyards.
--Harnesses.
--Pole climbing systems.
--Climbing spikes.
--Ladder safety device belts.
--Window cleaners' safety straps.
Face & eye protection
--Side shields.
--Goggles.
--Face shields/masks.
--Safety glasses.
--Welding goggles.
Hand protection and arm protection
--Gloves (disposable, fabric, leather mesh, aluminized, chemical
resistant).
--Rubber sleeves.
--Hand shields.
Hearing protection
--Ear plugs.
--Ear muffs.
Head protection
--Headgear.
--Helmets.
--Hard hats.
--Welding helmets.
Foot protection
--Safety shoes.
--Safety boots.
--Logging boots.
--Shin covers.
--Shoe covers.
--Logging chaps & kevlar pants/leg protection.
--Metatarsal protection.
Respiratory protection
--Air-purifying respirators.
--Atmosphere-supplying respirators, including supplied-air respirators
and self-contained breathing apparatus.
--Escape-only respirators.
--Filtering face pieces (dust masks).
Protective clothing
--Aprons.
--Encapsulating chemical protective suits.
--Flame resistant jackets and pants.
Fire fighting PPE
--Head protection.
--Face & eye protection.
--Protective coats and trousers.
--Foot protection.
--Hand protection.
--Proximity suits.
Protective equipment
--Insulating blankets.
--Matting.
--Barriers.
--Mouthpieces.
--Finger Cots.
Lifesaving equipment
--Life preservers.
--Life jackets.
--Reflective work vests.
--Ring life buoys.
--Retrieval systems.
Protective clothing for health-related substances
--Coveralls.
--Full body work clothing.
--Laboratory coats.
--Gowns.
--Disposable paper clothing.
--Shoe covers.
------------------------------------------------------------------------
3. Employers are in the best position to provide the correct type
of protective equipment and keep it in repair. OSHA believes that
requiring employers to pay for PPE will directly improve safety and
health because the employer is in the best position to select, order,
and obtain the proper type and design of PPE, ensure that it is of the
necessary quality, and maintain it.
Employers are required to perform a hazard assessment of the
workplace and select the correct type of PPE to protect employees from
the hazards identified in that hazard assessment (Sec. 1910.132(d)).
Employees often do not have the expertise to select the correct type of
PPE, especially where the selection of appropriate PPE, such as fall
protection equipment and respirators, may be complicated.
OSHA also believes that employers are in the best position to keep
the PPE in repair. Employers are required to maintain PPE in a sanitary
and reliable condition (Sec. 1910.132(a)). Because of this
responsibility, OSHA believes that employers can maintain better
control over the inventory of PPE by periodically inspecting the PPE
and, when necessary, repairing or replacing it due to damage or normal
wear and tear.
OSHA gave these reasons for requiring employers to pay for PPE in
the final standard for logging operations (59 FR 51683, October 12,
1994). A number of commenters supported this reasoning.
OSHA first used this reasoning in rulemakings conducted in the
1970's. For example, the Inorganic Arsenic standard explicitly requires
employers to pay for respirators, protective clothing, and protective
equipment, including gloves, shoes, and face shields or goggles. 29 CFR
1910.1018(j)(1). The preamble to the rule states that it is the
employer's obligation to provide protective equipment at no cost to the
employee and that doing so puts the employer in the best position to
provide the correct type of equipment and keep it in repair. 43 FR
19619 (May 5, 1978). OSHA applied the same reasoning in requiring
employers to pay for respirators when necessary to protect employees
from exposure to cotton dust. 43 FR 27387 (June 23, 1978). These
standards were subsequently upheld on appeal.
In the recent respiratory protection standard, OSHA stated clearly
that the employer must pay for any respirator required to be worn by
employees. Although respirators are one of the more expensive types of
PPE, there was no opposition to this requirement. 63 FR 1152, 1195,
(January 8, 1998.)
4. Requiring employees to pay for PPE may discourage their use of
PPE. Another reason for requiring the employer to pay for PPE is that
employees may be discouraged from using necessary PPE if they are
responsible for paying for it and must select and buy it.
In the preamble to the Hearing Conservation amendment, OSHA
determined that employers should pay for hearing protectors based in
part on the reasoning that permitting an employer to charge employees
for hearing protectors could discourage the use of such devices and
thereby undermine the effectiveness of the employer's hearing
conservation program. 46 FR 4153 (January 16, 1981). The Fourth Circuit
Court of Appeals upheld the standard's allocation of hearing protector
costs to employers. Forging Indus. Ass'n v. Secretary of Labor, 773
F.2d 1436, 1451 (4th Cir. 1985)(en banc). The Court noted in that case
that the Supreme Court's finding in ATMI left no doubt that Congress
intended to impose compliance costs on employers and that "it is only
logical that OSHA may require employers to absorb such costs." Forging
Indus. Ass'n, 773 F.2d at 1451.
One of the reasons OSHA has given for medical removal protection
(MRP) benefits in its lead and cadmium standards is to encourage
employee participation in the medical surveillance programs mandated by
those standards. MRP protects the wages and other benefits of employees
removed from exposure to a toxic substance because of an exposure--
related condition revealed by medical surveillance. In the preamble to
the cadmium standard, OSHA stated "(MRP) . . . increase(s) employee
participation and confidence in the standard's medical surveillance
program." 57 FR 42101, 42367 (September 14, 1992). Analogous reasoning
supports the proposed requirement that employers pay for PPE. OSHA
believes that requiring employers to pay for PPE will increase the
likelihood that the employees will use the PPE and have confidence in
the employer's PPE program. The requirement for MRP and OSHA's
rationale were both specifically upheld in the lead decision, United
Steelworkers v. Marshall, 647 F.2d 1189, 1231 (D.C. Cir. 1980).
As discussed in the Background and Legal Considerations sections,
OSHA has explicitly required employer payment for PPE in all health
standards issued since 1977. This issue has been less clearly and
directly addressed, however, in OSHA's safety standards. As discussed
in the Background section, OSHA attempted to clear up any ambiguity in
its 1994 memo to the field which stated that employer payment for PPE
was generally required (with an exception for steel-toe safety footwear
and prescription eyewear).
5. Some State-Plan States already interpret their standards to
require employers to pay for PPE. Several States with OSHA-approved
State-plans already require employers to pay for PPE. These
requirements have provided protection to employees without posing
feasibility problems for employers. For example, the State of North
Carolina requires employers to provide, at no cost to the employee, all
personal protective equipment that the employee does not wear off the
job-site for use off the job. However, this State requirement applies
only to general industry workplaces.
California standards are somewhat more extensive than those of
North Carolina. Whenever California standards use the word "provide,"
California State Courts have uniformly interpreted the standards to
mean that the employer pays for all PPE (including any replacement PPE)
in all industry sectors. The only exceptions are for PPE that reflect
"special preferences" by employees, such as prescription safety
eyewear or shoes of higher quality than required, or that reflect the
individual's style preference. Many other State-plan states, including
Alaska, Arizona, Indiana, Kentucky, New York, and Minnesota, either
require the employer to pay for all PPE or follow the practice outlined
in Federal OSHA's 1994 memo to the field.
C. Scope of Proposed Rulemaking
The proposal applies to the following industry sectors: general
industry, construction, and maritime (shipyard employment, marine
terminals, and longshoring). It does not apply to agriculture because
OSHA does not have general standards for PPE use in agriculture.
However, some employees in agriculture are covered by two general
industry standards, the logging standard (29 CFR 1910.266) and the
cadmium standard (29 CFR 1910.1027), which specifically require
employers to pay for required PPE (except in the case of the logging
boots specified in 1910.266(d)(l)(v), which are specifically exempted
from the requirements of the proposed standard). The PPE requirements
in these two standards will continue to apply in agriculture.
Even though the types of PPE may vary across and within industry
sectors, the same OSHA policy considerations on payment apply to all of
them. In addition, many OSHA safety and health standards already
contain provisions requiring the employer to pay for protective
equipment and PPE.
Table II lists many OSHA provisions requiring the use of protective
equipment and PPE. The table identifies the provision, and the type of
PPE required by that provision.
Table II.--PPE Provisions in OSHA Standards
------------------------------------------------------------------------
29 CFR OSHA references Type of PPE
------------------------------------------------------------------------
Part 1910--General Industry 6(a) Standards \1\
------------------------------------------------------------------------
Sec. 1910.28(g)(9).......... Safetybelt and lifeline.
Sec. 1910.28(j)(4).......... Safetybelt and lifeline.
Sec. 1910.94(c)(6)(iii)(a).. Air-supplied respirator.
Sec. 1910.94(d)(9)(ii)...... Rubber and impervious boots.
Sec. 1910.94(d)(9)(iii)..... Shoes.
Sec. 1910.94(d)(9)(iv)...... Impervious gloves.
Sec. 1910.94(d)(9)(v)....... Impervious aprons, coats.
Sec. 1910.94(d)(9)(vi)...... Jackets, chemical goggles, face shields,
respirators.
Sec. 1910.132(a)............ Personal protective equipment, eye, face,
head, extremities, protective clothing,
and respiratory devices.
Sec. 1910.132(b)............ Employee-owned PPE (any PPE owned by
employees and used on the job-site).
Sec. 1910.218(a)(1)(iv)..... Gloves, goggles, and aprons.
Sec. 1910.242(b)............ PPE appropriate for hazards associated
with the use of hand and portable
powered tools and equipment.
Sec. 1910.243(d)(1)(ii)..... Eye, face, head protection.
Sec. 1910.252(b)(1)(i)...... Safetybelt, lifeline.
Sec. 1910.252(b)(2)(i)(A)... Welding helmet, hand shields.
Sec. 1910.252(b)(2)(i)(B)... Filter lens.
Sec. 1910.252(c)(4)(2)(ii).. Airline respirator.
Sec. 1910.252(c)(4)(iii).... SCBA.
Sec. 1910.252(c)(7)(iii).... Respirator.
Sec. 1910.261(b)(2)......... Foot protection, shin guards, hardhats,
noise attenuation.
Sec. 1910.261(b)(5)......... Lifeline, safety harness.
Sec. 1910.261(c)(2)(vii).... Foot, head, eye protection.
Sec. 1910.261(c)(6)(ii)..... Foot, head, eye protection.
Sec. 1910.261(c)(7)(ii)..... Foot, head, eye protection.
Sec. 1910.261(d)(1)(i)...... Respirators, goggles, protective masks.
Sec. 1910.261(d)(1)(ii)..... Eye, face protection, clothing.
Sec. 1910.261(g)(2)(i),(ii), Gas mask, respirators, eye protection,
&(iii). safety belts, lifeline.
Sec. 1910.261(g)(4)......... Respirators, lifebelts, lifelines.
Sec. 1910.261(g)(5)......... Rubber boots, gloves, apron, eye
protection.
Sec. 1910.261(g)(6)......... Respirator.
Sec. 1910.261(g)(10)........ Gas mask.
Sec. 1910.261(g)(15)(ii),(ii Respirator, lifeline, safetybelt.
i)&(v).
Sec. 1910.261(g)(18)(i)&(ii) Showers, bubblers.
Sec. 1910.261(h)(2)(iii)&(iv Gas mask, SCBA.
).
Sec. 1910.261(i)(4)......... Eye, head, foot and shin protection.
Sec. 1910.261(k)(3)......... Face shields, aprons, rubber gloves.
Sec. 1910.265(c)(21)(i)..... Safetybelt, lifeline.
Sec. 1910.265(d)(2)(ii)(h).. Life ring and line.
Sec. 1910.265(d)(2)(iii)(g). Buoyant devices.
Sec. 1910.335(a)(1)(i)...... Electrical protective equipment.
Sec. 1910.335(a)(2)(i)...... Protective shields, barriers, insulation.
Sec. 1910.66(j)............. Personal fall arrest system.
Sec. 1910.67(c)(2)(v)....... Bodybelt.
Sec. 1910.120(g)(3)(iii).... Positive pressure SCBA, airline.
Sec. 1910.120(g)(3)(iv)..... Totally-encapsulated chemical suit.
Sec. 1910.120(c)(5(ii)...... 5-minute ESCBA.
Sec. 1910.120(c)(5)(iii).... Level B PPE.
Sec. 1910.120(q)(3)(iii).... Firefighting PPE.
Sec. 1910.120(q)(3)(iv)..... Positive pressure SCBA.
Sec. 1910.133(a)(1)......... Eye and face protection.
Sec. 1910.134............... Respirators.
Sec. 1910.135............... Protective helmet.
Sec. 1910.136............... Foot protection.
Sec. 1910.137............... Electrical protective equipment.
Sec. 1910.138............... Hand protection.
Sec. 1910.146(k)(1)(i)...... PPE, rescue equipment.
Sec. 1910.156(e)(1)(i)...... Protective clothing.
Sec. 1910.156(e)(1)(ii)..... Firefighting PPE.
Sec. 1910.156(f)(1)(i)...... Respirators.
Sec. 1910.266(d)(1)(iii).... Hand protection.
Sec. 1910.266(d)(1)(iv)..... Leg protection.
Sec. 1910.266(d)(1)(v)...... Logging boots.
Sec. 1910.266(d)(1)(vi)..... Head protection.
Sec. 1910.266(d)(1)(vii).... Eye and face protection.
Sec. 1910.268(g)(1)......... Safetybelt and strap.
Sec. 1910.268(1)(i)......... Head protection and eye protection.
Sec. 1910.272(g)(1)(iii)(B). Respirator.
Sec. 1910.272(g)(2)......... Body harness and lifeline.
Sec. 1910.94(a)(5)(i)....... Respirators.
Sec. 1910.94(a)(5(iv)....... Respirators.
Sec. 1910.94(a)(5)(v)(B).... Eye and face protection.
Sec. 1910.95(b)(1).......... PPE (Hearing protection).
Sec. 1910.95(i)(1).......... Hearing protection.
Sec. 1910.95(i)(3).......... Hearing protection.
------------------------------------------------------------------------
Part 1910 General Industry Health 6(b) Standards\1\
------------------------------------------------------------------------
Sec. 1910.134............... Respirators.
Sec. 1910.1002.............. Protective equipment, Respirators.
Sec. 1910.1001(g)(2)(i)..... Respirators.
Sec. 191.1001(h)(1)......... Coveralls, gloves, head coverings, foot
coverings, face shields, goggles.
Sec. 1910.1001(j)(7)(iii)(E) PPE (for protection against asbestos).
Sec. 1910.1003(b)........... Protective clothing, smocks, coveralls,
gloves.
Sec. 1910.1003(c)(4)(iii)... Long-sleeved shirts, pants, boots.
Sec. 1910.1003(c)(4)(iv).... Respirators.
Sec. 1910.1003(c)(5)(i)..... Gloves, boots, respirators.
Sec. 1910.1004.............. Respirators, protective clothing.
Sec. 1910.1006.............. Respirators, protective clothing.
Sec. 1910.1007.............. Respirators, protective clothing.
Sec. 1910.1008.............. Respirators, protective equipment.
Sec. 1910.1009.............. Respirators, protective equipment.
Sec. 1910.1010.............. Respirators, protective equipment.
Sec. 1910.1011.............. Respirators, protective equipment.
Sec. 1910.1012.............. Respirators, protective equipment.
Sec. 1910.1013.............. Respirators, protective equipment.
Sec. 1910.1014.............. Respirators, protective equipment.
Sec. 1910.1015.............. Respirators, protective equipment.
Sec. 1910.1016.............. Respirators, protective equipment.
Sec. 1910.1017.............. Respirators, protective equipment.
Sec. 1910.1018.............. Respirators, protective work clothing,
eye and face protection.
Sec. 1910.1025.............. Respirators, protective work clothing.
Sec. 1910.1027.............. Respirators, protective work clothing,
eye and face, head protection.
Sec. 1910.1028.............. Respirators, protective clothing, eye and
face protection.
Sec. 1910.1029.............. Flame resistant pants, jacket, gloves,
eye and face protection, insulated
footwear, protective helmets.
Sec. 1910.1030.............. Gloves, gown, lab coat , face shield,
masks, eye protection, mouthpieces,
pocket mask.
Sec. 1910.1043.............. Respirators.
Sec. 1910.1044.............. Respirators, protective clothing, eye and
face protection.
Sec. 1910.1045.............. Respirators, protective clothing and
equipment.
Sec. 1910.1047.............. Respirators, protective clothing and
equipment.
Sec. 1910.1048.............. Respirators, protective clothing and
equipment.
Sec. 1910.1050.............. Respirators, aprons, coveralls, gloves,
head coverings, foot coverings, face
shields, chemical goggles, other PPE.
Sec. 1910.1051.............. Respirators, protective clothing, eye and
face protection.
Sec. 1910.1052.............. Respirators, protective clothing, eye and
face protection.
Sec. 1910.1200(h)(3)(iii)... PPE (for protection against hazardous
chemicals).
Sec. 1910.1450(e)(3)(ii).... PPE (for protection against hazardous
chemicals in laboratories).
Sec. 1910.1450(f)(4)(i)(C).. PPE (for protection against hazardous
chemicals in laboratories).
Sec. 1910.1450(i)........... Respirators.
Part 1915--Shipyard Employment 6(a) Standards \1\
------------------------------------------------------------------------
Sec. 1915.12(c)(4)(ii)...... Respirators, other PPE.
Sec. 1915.12(e)(1)(i)....... Respirators, other PPE.
Sec. 1915.13(b)(6)(iv)...... Respirators, other PPE.
Sec. 1915.32(a)(3).......... Respirators, protective clothing.
Sec. 1915.33(a)............. Eye and face protection.
Sec. 1915.33(d)............. Face protection.
Sec. 1915.33(e)............. Face protection.
Sec. 1915.34(a)(1).......... Goggles, face shields.
Sec. 1915.34(a)(4).......... Respirators.
Sec. 1915.34(b)(1).......... Respirators.
Sec. 1915.34(c)(3)(i)....... Respirators.
Sec. 1915.34(c)(3)(ii)...... Respirators.
Sec. 1915.34(c)(iii)........ Respirators.
Sec. 1915.34(c)(iv)......... Protective clothing, gloves.
Sec. 1915.34(c)(3)(v)....... Safety belt.
Sec. 1915.35(a)(1)(i)....... Respirators.
Sec. 1915.35(a)(1)(ii)...... Respirators.
Sec. 1915.35(a)(1)(iii)..... Respirators.
Sec. 1915.35(a)(2).......... Respirators.
Sec. 1915.35(b)(9).......... Eye, face, head, hand protection,
protective clothing.
Sec. 1915.35(b)(13)......... Respirators and protective clothing.
Sec. 1915.35(b)(14)......... Respirators and protective clothing.
Sec. 1915.51(c)(3).......... Respirators.
Sec. 1915.51(d)(2).......... Respirators.
Sec. 1915.51(d)(3).......... Respirators.
Sec. 1915.51(e)(1)(ii)...... Eye protection, filter lenses.
Sec. 1915.51(e)(1)(iii)..... Protective clothing.
Sec. 1915.51(f)(2).......... Eye protection.
Sec. 1915.53(d)(1).......... Respirators.
Sec. 1915.53(d)(2).......... Respirators.
Part 1915--Shipyard employment 6(b) Standards \1\
------------------------------------------------------------------------
Sec. 1915.12(a)(3)(ii)...... Respirators, other PPE.
Sec. 1915.152(a)............ All PPE.
Sec. 1915.153(a)............ Eye and face protection.
Sec. 1915.154............... Respirators.
Sec. 1915.155............... Head protection.
Sec. 1915.156............... Foot protection.
Sec. 1915.157............... Hand and body protection.
Sec. 1915.158............... Personal flotation devices, life rings.
Sec. 1915.159............... Personal fall arrest systems.
Sec. 1915.160............... Positioning device systems.
------------------------------------------------------------------------
Part 1917--Safety and Health Regulations for Marine Terminals 6(b)
Standards \2\
------------------------------------------------------------------------
Sec. 1917.22(c)............. Protective clothing.
Sec. 1917.23(d)(1).......... Respirators, emergency protective
equipment.
Sec. 1917.25(e)(1).......... Respirators, emergency protective
equipment.
Sec. 1917.26(f)............. Personal flotation devices, safety belts.
Sec. 1917.49(i)(3).......... Lifeline and safety harness.
Sec. 1917.73(a)(3).......... Respirators.
Sec. 1917.73(c)............. Respirators, lifeline, safety harness.
Sec. 1917.91(a)(1).......... Eye and face protection.
Sec. 1917.92................ Respirators.
Sec. 1917.93(a)............. Head protection.
Sec. 1917.94(a)............. Foot protection.
Sec. 1917.95(a)............. Protective clothing.
Sec. 1917.95(b)............. Personal flotation devices.
Sec. 1917.118(e)(1)......... Ladder safety device.
Sec. 1917.126(b)............ Personal flotation devices.
Sec. 1917.152(e)(8)(ii)..... Eye protection, filter lenses.
Sec. 1917.152(e)(11)........ Rubber pads, rubber boots.
Sec. 1917.152(f)............ Respirators.
Sec. 1917.152(f)(4)......... Eye, head, hand protection.
Sec. 1917.152(g)(3)......... Respirators.
Sec. 1917.152(h)............ Respirators, eye, face, head protection,
filter lenses.
Sec. 1917. 154.............. PPE (For protection against hazards
resulting from the use of compressed
air).
------------------------------------------------------------------------
Part 1918--Longshoring 6(b) Standards \1\
------------------------------------------------------------------------
Sec. 1918.101............... Eye protection.
Sec. 1918.102............... Respirators.
Sec. 1918.103............... Protective clothing.
Sec. 1918.104............... Foot protection.
Sec. 1918.105............... Head protection.
Sec. 1918.106............... Personal flotation devices
------------------------------------------------------------------------
Part 1926 Construction 6(a) Standards \1\
------------------------------------------------------------------------
Sec. 1926.300(c)............ PPE (for hazards from the use of hand and
power tools).
Sec. 1926.304(e)............ PPE (for hazards from the use of
woodworking tools).
Sec. 1926.551(e)............ Eye protection, hardhats.
------------------------------------------------------------------------
Part 1926--Construction 6(b) Standards \1\
------------------------------------------------------------------------
Sec. 1926.52(b)............. Hearing protection.
Sec. 1926.95(a)............. General requirements for all PPE used in
construction.
Sec. 1926.95(b)............. Employee owned PPE.
Sec. 1926.95(c)............. Design of PPE.
Sec. 1926.701(f)............ Face and head protection.
Sec. 1926.800(d)(7)......... PPE used in underground construction.
Sec. 1926 Subpart L......... Personal fall arrest systems.
Sec. 1926 Subpart M......... Personal fall arrest systems.
------------------------------------------------------------------------
\1\ A 6(a) standard is any standard that OSHA adopted from an existing
Federal standard or a national consensus standard under Sec. 6(a) of
the Act, i.e., without notice-and-comment rulemaking. A 6(b) standard
is a standard that OSHA promulgated using the rulemaking process with
public participation.
For all industry sectors, employers are in the best position to
choose the proper type and quality of PPE, and to maintain the PPE
selected. The same statutory considerations apply to all industry
sectors, as discussed above in this preamble.
However, additional considerations apply to workplaces in
construction, longshoring, and marine terminals: first, there is
considerable turnover in these industries, and second, many of the
affected businesses employ only a small number of employees. Based on
OSHA's experience, safety-toe footwear is the type of PPE most often
used in these industries and the type of PPE that employees are most
often required to pay for at present. This equipment would be excluded
from the "employer pays" requirement, provided that the three
proposed conditions are met. Therefore, OSHA does not believe that its
proposal will cause economic difficulties for employers in these
sectors. See also section VI., Preliminary Economic Analysis.
D. Current OSHA Rrequirements Concerning Payment for PPE
Earlier OSHA standards promulgated under section 6(a) of the OSH
Act (i.e., those standards adopted without notice-and-comment
rulemaking and public participation) that required the use of PPE did
not explicitly address the issue of who is required to pay for PPE. In
1978, however, several substance-specific health standards promulgated
under section 6(b) of the OSH Act (i.e., promulgated using the full
rulemaking process with public participation and comment) required
employers to pay for PPE. Since that time, all OSHA health standards
have explicitly required employers to pay for required PPE.
However, the safety standards promulgated under section 6(b) of the
OSH Act have not been consistent with respect to the employer's
responsibility to pay for PPE. Several of these standards require the
employer to "provide" PPE, but do not explicitly state that the
employer must pay for it. Other standards specifically require the
employer to pay for all PPE. One standard, Logging Operations
(Sec. 1910.266), requires the employer to pay for all PPE, with the
exception of logging boots. The following are examples of OSHA's
current PPE requirements.
Telecommunication standard. Paragraph (e) of Sec. 1910.268 requires
the employer to provide personal protective equipment, protective
devices and special tools. However, this provision does not
specifically state that the employer must pay for the PPE, even though
it is common practice in the telecommunications industry for the
employer to pay for all PPE except for safety-toe protective shoes (see
the Regulatory Impact Analysis for that standard).
Electric Power Generation. Paragraph (g)(1) of Sec. 1910.269
requires PPE to meet the requirements of subpart I of part 1910, but
does not specify that the employer must pay for the PPE.
Maritime standards. Paragraph (a) of Sec. 1915.152 (Shipyard
standards) requires the employer to provide and ensure the use of PPE,
but does not clearly state that the employer is required to pay for it.
Identical PPE standards apply to marine terminals (part 1917) and
longshoring (part 1918). They state, in part: "The employer shall
ensure that each affected employee wears* * *[PPE]." Again, the
regulatory text does not state that the employer is required to pay for
the PPE. However, the preamble to the marine terminals and longshoring
standards does give guidance with respect to the payment for PPE issue
(62 FR 40186-87):
Although the equipment used in marine cargo handling operations
often differs from that mentioned in the October 18 memorandum [OSHA
Policy Memorandum, October 18, 1994] the same policy considerations
apply in the Longshore and Marine Terminals standard PPE context.
Therefore, OSHA will apply the above-stated policy when determining
whether the employer is required to pay for a particular kind of
PPE.
Therefore, OSHA's enforcement policy for marine terminals and
longshoring requires employers to pay for all PPE except for safety-toe
protective shoes and prescription safety glasses.
Subpart I of part 1910. On April 6, 1994, OSHA revised its general
industry standards for PPE (59 FR 16362) and added new provisions for
hazard assessment and training. The Agency had not proposed a
requirement concerning the employer's responsibility to pay for PPE,
and the subject was not an issue during the rulemaking.
Permit-required confined spaces (Sec. 1910.146). This standard
specifically requires the employer to pay for PPE. It requires the
employer to provide the equipment (including PPE) necessary for safe
entry into, and rescue from, permit spaces at no cost to employees, to
maintain the equipment properly, and to ensure its proper use by
employees.
Logging operations. During the logging rulemaking, OSHA proposed
that the employer provide PPE and assure its use. OSHA's intent was
that the employer provide all PPE at no cost to employees. However,
some commenters asserted that employers should not have to pay for all
types of PPE used in logging operations.
After careful analysis of the rulemaking record, the Agency
concluded that the employer should be required to pay for all PPE
except for logging boots. OSHA noted that logging boots are customarily
worn outside the workplace; are individually-fitted and therefore not
usable by another employee; and are used in an industry that has a
high turnover rate.
E. Advisory Committee on Construction Safety and Health
The Advisory Committee on Construction Safety and Health (ACCSH)
assists OSHA by providing comments and recommendations on proposed
construction standards. Accordingly, the Agency provided ACCSH with the
following draft revision of Sec. 1926.95:
(d) Payment for Protective Equipment. All protective equipment,
including personal protective equipment, required in this part,
shall be provided by the employer at no cost to employees except for
safety-toe protective footwear and prescription safety eyewear.
ACCSH considered the proposed language at its meeting on April 8, 1998.
ACCSH members expressed several concerns about the proposed
language. Some members expressed the view that many employers were
already paying for safety-toe shoes through collective bargaining
agreements and that the new text might discourage them from continuing
to do so (Tr. 53, 61).
Members also noted that prescription glasses are sometimes
incorporated into respirator facepieces and would therefore be
impractical for workers to use at home. They therefore asked why
employers should not pay for that prescription eyewear (Tr. 47).
Other members of the committee mentioned the problem of employees
who did not always bring their safety equipment to work. They noted
that it would be expensive for an employer to have to replace that
equipment frequently (Tr. 51-52).
Two resolutions were introduced. The first stated:
All protective equipment, including personal protective equipment,
required in this part, shall be provided by the employer at no cost
to the employees.
That resolution failed by a 6 to 7 vote.
The second resolution introduced read as follows:
The language currently in 1926.95 regarding personal protective
equipment, is effective and is sufficient to protect the worker and
provide the personal protective equipment. (We) recommend leav(ing)
the language as is currently stated in 1926.95 (Tr. 62).
That resolution passed by a 6 to 2 vote.
Based on the recommendations and discussion of ACCSH, the Agency
revised the draft regulatory text to reflect many of the Committee's
concerns. OSHA is proposing the revised proposed regulatory text for
general industry and maritime as well as the construction industry.
The Agency believes that the Union Tank decision has undercut
OSHA's ability to enforce the standard as outlined in the 1994 memo. As
discussed below, the proposed rule incorporates much of the 1994 memo
into the text of the Agency's various protective equipment standards.
OSHA believes that this action will carry out the recommendations of
ACCSH effectively.
The proposed regulatory text now makes clear that the employer is
not required to pay for safety-toe protective footwear and prescription
safety eyewear unless: (1) The employer does not permit it to be worn
off-site; (2) the footwear or eyewear is rendered unsafe for use off-
site; or (3) the footwear or eyewear is designed for special use on the
job. For example, contaminated safety-toe footwear would not be
permitted to be worn off the job-site because it would be unsafe to do
so, and prescription eyewear mounted inside a full-facepiece respirator
would not be permitted for use off the job-site because it is designed
for special use on-site. Consequently, the employer would be required
to pay for the PPE in these two examples.
OSHA intends to require employers to pay for the initial issue of
PPE and for replacement PPE that must be replaced due to normal wear
and tear or occasional loss. Only in the rare case involving an
employee who regularly fails to bring employer-supplied PPE to the job-
site, or who regularly loses the equipment, would the employer be
permitted to require the employee to pay for replacement PPE.
F. Explanation of Proposed Requirement
OSHA is proposing to add the following language to its general
industry standards as Sec. 1910.132(h):
All protective equipment, including personal protective equipment
(PPE), required in this part, shall be provided by the employer at
no cost to employees.
Exception: The employer is not required to pay for the logging
boots required by 29 CFR Sec. 1910.266(d)(1)(v). The employer is
also not required to pay for safety-toe protective footwear, or for
prescription safety eyewear, provided that all three of the
following conditions are met: (1) the employer permits such footwear
or eyewear to be worn off the job-site; (2) the footwear or eyewear
is not used at work in a manner that renders it unsafe for use off
the job-site (for example, contaminated safety-toe footwear would
not be permitted to be worn off a job-site); and (3) such footwear
or eyewear is not designed for special use on the job.
OSHA is proposing to add the same language (except for the first
sentence of the exception, which applies only to the general industry
workplaces covered by the logging standard) as shipyard
Sec. 1915.152(f) as marine terminal Sec. 1917.96, as longshoring
Sec. 1918.106, and as construction Sec. 1926.95(d).
The purpose of this language is to make clear that employers must
provide and pay for all necessary PPE wherever such PPE is required by
an OSHA standard, with the exceptions mentioned. The reasons for this
proposal have been discussed above and are also found in the Legal
Considerations section of this preamble, above.
The proposal is intended to cover every situation where an OSHA
standard requires the use of PPE. OSHA preliminarily concludes that all
the reasons why employers should provide and pay for PPE apply
generally to all types of PPE. In other words, the reasons why an
employer is in the best position to purchase the correct type and
quality of wire mesh gloves to prevent finger lacerations also apply to
the selection and purchase of the correct type and quality of fall
protection harnesses and lanyards, respirators, and metatarsal foot
protection. As noted, the proposal does contain exceptions and
conditions to these exceptions. OSHA requests comment on whether other
types of PPE should be excepted from the employer-payment principle and
if so, why.
The proposed payment requirement in Sec. 1910.132(h) applies to
"all protective equipment required in this part." For example, part
1910 contains many different requirements for the use of PPE throughout
general industry (see Table 2, above). Although the proposed regulatory
language would be inserted only in Sec. 1910.132 (which is in subpart I
of part 1910), OSHA intends that employers pay for all PPE required
throughout part 1910.
OSHA does not believe it necessary to specify in the proposed
regulatory text that the employer ensure that employees use the
required PPE and maintain it appropriately, because these concepts are
already clearly stated in most of OSHA's PPE requirements. OSHA
requests comments on the adequacy of this approach, and whether
employee use and maintenance of PPE should be specifically required.
As discussed previously, some PPE requirements already include
specific language requiring the employer to provide and pay for PPE
(e.g., the language used in most health standards), while others use
more ambiguous language. OSHA intends the proposed new language to
cover all of the Agency's PPE requirements. OSHA believes that this
approach will make the obligations of employers clear with regard to
the provision and payment for PPE. The proposed language does not
affect or limit the "provide-and-pay" language in those regulatory
provisions that already clearly state this requirement, such as 29 CFR
1910.266(d)(1)(v), 29 CFR 1910.1029(h)(1), 29 CFR 1910.146(d), and 29
CFR 1910.134(c).
The proposed provide-and-pay language also allows a reasonable
degree of compliance flexibility. For example, the proposed language
would permit an employer to send an employee to purchase appropriate
PPE at a supply store if the employer paid for the employee's time and
paid for the PPE.
The proposed requirement would also make the employer responsible
to provide, and pay for, replacement PPE when the original PPE wears
out from normal wear and tear or in the event of occasional loss or
accidental damage by the employee. However, if an employee regularly
and with unreasonable frequency loses or damages the PPE, the employer
may request that the employee pay for the replacement PPE. This issue
was discussed at the ACCSH meeting, as noted earlier. It is also
important to note that current OSHA PPE standards (e.g.,
Sec. 1910.132(f)(1)(v)) already require the employer to train employees
in the proper care, maintenance, and useful life of PPE.
Exceptions
For the reasons discussed above, OSHA has preliminarily concluded
that the Agency needs to codify the general principle that employers
must both provide and pay for PPE. However, the Agency is also
proposing exceptions to that rule. OSHA is not proposing to require
employers to provide, or pay for, safety-toe protective footwear or
prescription safety eyewear providing that the following three
conditions are met: (1) the employer permits the footwear or eyewear to
be worn off-site; (2) the footwear or eyewear is used on the job in a
manner that does not make it unsafe for off-site use; and (3) the
footwear or eyewear is not designed for special use on the job. In
addition, as the current rule provides, general industry employers are
not required to pay for the logging boots required by 29 CFR
1910.266(d)(1)(v).
Safety-toe protective footwear (safety shoes). This discussion of
safety shoes pertains only to safety-toe protective footwear. It does
not pertain to other types of foot protection, such as metatarsal or
cut-resistant protective boots. (Logging boots are discussed below.)
OSHA considers safety shoes to be personal in nature. That is,
safety shoes are not used by different employees. Instead, they are
used by, and sized to fit, only one individual employee. Also, one
employee's safety shoes are not generally used by other employees
because of size and hygienic concerns. In addition, employees often
wear safety shoes away from the job-site.
Safety shoes are widely available and are not difficult for the
employee to select and purchase. Evidence presented in the Preliminary
Economic Analysis also shows that it is customary in some workplaces
for employees to pay for their safety-toe footwear. In addition, the
OSHA policy memorandum of 1994 generally excepted safety-toe safety
shoes from the employer payment requirement. For these reasons, OSHA is
not proposing to include safety-toe safety shoes in the employer
payment requirement if all three of the conditions are met.
Thus, the proposed exception would not apply to metatarsal
protection (metatarsal guards or protective footwear that incorporates
metatarsal protection) or special cut-resistant footwear because these
kinds of footwear are not generally used off the worksite, and
employers often re-issue metatarsal guards and cut-resistant footwear
to subsequent employees. Also, the proposed exception would not apply
to any safety-toe safety shoe that cannot safely be worn off the
worksite. For example, the exception does not include safety shoes that
have been worn in a regulated area where they may have been
contaminated with a toxic substance. Employers must continue to provide
and pay for these safety shoes because they are not safe for use off-
site. However, the exception does not prohibit employers from paying
for safety-toe safety footwear of any type, if they choose to do so.
Prescription safety eyewear. OSHA also considers prescription
safety eyewear to be personal in nature. Prescription safety eyewear
is, of course, designed for the use of a single individual. Other types
of protective eyewear, such as goggles, generally remain at the job-
site and can be cleaned and reissued for use by other employees.
Prescription safety eyewear is usually used both on and off the
job-site. Additionally, regular prescription glasses can be worn
underneath goggles and other protective eyewear that has been designed
to accommodate them. Therefore, in this situation OSHA believes that
employers should be required to pay only for the protective goggles.
Employees can then decide either to purchase their own prescription
safety glasses or to wear their own prescription glasses underneath the
protective eyewear provided by the employer. Additionally, the employer
may agree to pay all or part of the cost of prescription safety
eyewear. However, the employer must pay for any prescription eyewear
that is mounted inside the full-facepiece of a respirator, because such
eyewear would fall under the "special use" condition of the proposed
rule (this is also clearly required by the respirator standard). OSHA's
position on this issue is discussed below in the Issues Section of this
preamble.
The Agency realizes that there may be different opinions with
respect to this proposal. Some may argue that requiring employers to
pay for all PPE (including safety shoes and prescription safety
eyewear) may lead to more employees wearing PPE and, consequently, may
enhance employee safety. The Issues Section, below, requests comment on
this issue.
OSHA emphasizes that payment for safety-toe footwear and
prescription safety eyewear can be negotiated between management and
labor. Also, this proposed rulemaking is not intended to affect any
collective bargaining agreements, or any other responsibility to pay
for safety-toe footwear and prescription safety eyewear in particular
workplaces.
The Agency also emphasizes that this proposed rulemaking does not
change the employer's obligation under the Act to ensure that all PPE,
including employee-owned PPE, is worn when necessary, is adequate to
protect employees from the hazard, and is properly maintained. If the
employee chooses to furnish his or her personally-owned PPE, this rule
does not require the employer to reimburse the employee for the cost of
that equipment.
This proposed revision specifically restates the exception to the
"employer pays" principle contained in the OSHA standard for logging
operations (Sec. 1910.266(d)(1)(v)), which specifies that the employer
is not required to pay for a certain type of foot protection (foot
protection constructed of cut-resistant material to protect employees
who operate chainsaws, etc.). OSHA considered that issue at length in
the logging rulemaking and concluded that the evidence supported
excluding that type of footwear from the general obligation that
logging employers pay for logging PPE. See the discussion at 59 FR
51683-4 (Oct. 12, 1994).
V. Issues Pertaining to the Proposed Rule
OSHA requests comments, views, and data on all issues relevant to
the proposed rule, including the following:
1. OSHA also considered proposing the following alternative
regulatory text:
The employer shall provide, at no cost to the employee, all
protective equipment and personal protective equipment except for
protective equipment which the employer demonstrates is personal in
nature and customarily used off the job.
This provision is stated in general language and would have the
advantage of providing some flexibility for specific workplace
situations involving PPE. However, a major disadvantage of this
approach is that it uses the terms "personal in nature" and
"customarily used off the job," which OSHA would need to define and
interpret. OSHA's proposed exception, which is more specific than the
text of the alternative discussed above, provides greater certainty to
employers and workers.
OSHA requests comments on the merits of both approaches, including
views on how OSHA should interpret the regulatory text.
2. Are there other types of PPE, beside safety-toe safety footwear
and prescription eyewear, that should be excepted from the proposed
payment requirement? Why or why not? Please submit any available
supporting documentation. Alternatively, should OSHA require employers
to pay for all PPE, including safety-toe footwear and prescription
safety eyewear? Why or why not?
3. OSHA realizes that there is frequent turnover in the
construction industry, where employees frequently move from job-site to
job-site. This is an important factor because an employer with a high-
turnover workplace would have to buy PPE for more employees if the PPE
was of the type that could only be used by one employee. OSHA requests
comment on whether its proposed exceptions for safety-toe footwear and
prescription safety eyewear are appropriate in the construction
industry. Are there any other approaches to handle the turnover
situation that would be protective of construction workers? Are there
any other issues unique to the construction industry that should be
considered in this rulemaking?
4. The longshoring and marine terminal industries have a unique
employer-employee relationship in many ports. At some ports, employees
are hired for a job through a labor pool, and the same employee may
work for 5 different employers in the same week. How do these factors
affect the issue of who is required to pay for PPE? Does the employer
customarily pay for PPE in the maritime industry? Are there any other
issues unique to the maritime industry that OSHA should consider in
this rulemaking?
5. OSHA requests comments, information, and data on whether
employee-owned PPE is less protective than employer-provided PPE, and
under what circumstances.
6. The proposal covers protective equipment and personal protective
equipment used in welding, including protective gloves. Does welding
PPE create any unique problems on the PPE payment issue? Does the
employee usually pay for welding PPE?
7. If an employee wants to use more costly PPE because of
individual preference, should that employee be responsible for any
difference in cost? Is there evidence that such "individualized" PPE
has caused safety problems in the past?
8. Full-facepiece respirators present a unique problem for
employees who need prescription glasses. The temples of the
prescription glasses break the face-to-face piece seal and greatly
reduce the protection afforded by the respirator. Special glasses and
mounts inside the facepiece of the respirator are sometimes used to
provide an adequate seal. Because of this special situation, OSHA
believes that it is appropriate for the employer to provide and pay for
the special-use prescription glasses used inside the respirator
facepiece. Is it common industry practice for employers to pay for
these special glasses? What is the typical cost for providing "insert-
type" prescription glasses inside full-facepiece respirators?
9. OSHA's Preliminary Economic Analysis has found that this
proposal will not impose significant impacts on firms in any industry
segment or on affected small businesses. OSHA requests comments on the
analysis and on any industry or subindustry that may have particular
economic problems as a result of the proposed rule.
10. Should the standard require the employer to pay for inserts or
other articles that are uniquely personalized components of personal
protective equipment, such as head coverings used under welding helmets
and custom prescription lens inserts worn under a welding helmet or a
diving helmet?
11. OSHA intends to require employers to pay for the initial issue
of PPE. Should employers also be required to pay for PPE that must be
replaced due to normal wear and tear or occasional loss?
12. OSHA requests comments on the conclusions about the costs and
benefits contained in the Preliminary Economic Analysis section.
VI. Preliminary Economic Analysis
It has been determined that this is a significant regulatory action
under E.O. 12866, and a major rule under the Congressional Review
provisions of the Small Business Regulatory Enforcement Fairness Act.
Introduction
OSHA has prepared this Preliminary Economic Analysis to examine the
feasibility of the proposed rule on Employer Payment for Personal
Protective Equipment and to meet the requirements of Executive Order
12866 and the Regulatory Flexibility Act (as amended). The proposed
rule would require employers to pay for protective equipment, including
personal protective equipment (PPE), when OSHA standards mandate that
employers provide such equipment to their employees. The only PPE
employers would not be required to pay for in certain circumstances are
safety-toe footwear and prescription safety eyewear. OSHA is proposing
to except PPE of these types providing that these types of PPE meet
three conditions: (1) The employer permits them to be worn off-site;
(2) they are not used on-site in a manner that renders them unsafe for
use off-site; and (3) they are not designed for special on-site use.
Logging boots are also specifically excepted from employer payment by
29 CFR 1910.266(d)(1)(v).
OSHA's requirements for PPE (again, OSHA is using the abbreviation
"PPE" to cover all protective equipment, (including personal
protective equipment) appear in many health, safety, maritime, and
construction standards. In some cases, the standard is explicit in
stating that employers are to provide the PPE at no cost to the
employee (see, for example, OSHA's substance-specific health standards,
which are codified in Subpart Z of 29 CFR 1910.1000). In other cases,
however, such as in paragraph (a) of 29 CFR 1910.132 and paragraph (a)
of 29 CFR 1926.28, who is required to pay for the PPE is not expressly
specified. (For a complete list of OSHA's PPE requirements, see the
Summary and Explanation for the proposed standard, above.)
The proposed rule would apply to general industry, construction,
and maritime workplaces covered by the PPE provisions in existing OSHA
standards.
The rule would clarify OSHA's intent that, with the exceptions
noted, employers provide required PPE to their employees at no cost to
those employees. The kinds of PPE addressed by OSHA's PPE standards
include, for example, hard hats, safety shoes, gloves, safety glasses,
goggles, faceshields, welding helmets and goggles, fall protection equipment,
and chemical suits. (A more detailed list of the kinds of PPE covered
appears in the Summary and Explanation, above.)
Industry Profile
The proposed rule is concerned only with who pays for OSHA-required
PPE; that is, it would not require employers to provide PPE where none
has been required before. Instead, the proposed rule merely stipulates
that required PPE be paid for by the employer, except in the case of
safety-toe footwear and prescription safety eyewear that meets the
three proposed conditions. In other words, the required PPE is
currently being paid for either by the employer or the employee. The
proposed rule would shift the costs of that portion of the PPE
currently being paid for by the employee (except for safety-toe
footwear and prescription safety eyewear meeting the proposed
conditions) to their employers, as has been OSHA's intent. (See the
Legal Considerations section of the preamble, above, for details of
OSHA's legal interpretation of this issue.) To the extent that this
rule has the effect of improving the quality of PPE being used or of
ensuring that PPE is being used where it has not previously been used,
such improved compliance would result both in additional benefits and
costs to the economy. Nevertheless, to determine the extent of PPE
usage and the potential magnitude of any shift in costs, OSHA has
developed a profile of industry PPE use and payment patterns.
Data on PPE Usage Patterns
The data relied on to develop this industry profile derive from a
number of sources, although the Agency relied on survey data for its
estimates of use patterns for most types of PPE. The main source of
information on PPE use patterns for general industry was a telephone
survey of more than 5,000 employers conducted by OSHA in 1989 (ERG
1998), in support of the Agency's 1994 PPE rulemaking.4 The
survey yielded industry- and size-class-specific PPE use information
for nearly all industries affected by that rulemaking and the current
one. The survey provided information on PPE use in shipyards, within
the context of SIC 37, Transportation Manufacturing. It did not,
however, survey the construction industry.
---------------------------------------------------------------------------
\4\ Some of the results from this survey were used in OSHA's
background report in support of its 1994 PPE Regulatory Impact
Assessment (OSHA 1994).
---------------------------------------------------------------------------
Data on usage patterns in the construction industry derive
primarily from a study done for the Office of Technology Assessment
(OTA 1984) in 1982 by Springborne Associates. In this survey of
employers, OTA provided estimates of the number of construction workers
using various types of PPE. As with the 1989 PPE survey, the Agency
assumes that the patterns of PPE usage (percentage of employees using
PPE) within sectors of the construction industry have remained
constant. The Agency believes that this is a reasonable assumption, in
part because OSHA's construction rules governing PPE usage have
remained the same since 1972. Further, the OTA survey reported that
several types of PPE (e.g., hard hats, gloves, eye protection) are used
by virtually all construction workers; thus it would be impossible for
usage of these types of PPE to have increased significantly over time.
The general assumption that PPE usage patterns have not changed
significantly over time is supported by a recent OSHA analysis of
respirator use patterns conducted for the Agency's final rule for
respiratory protection (63 FR 1172, January 8, 1998). This analysis
shows that respirator usage patterns have not changed substantially
from those shown in the OTA report. A comparison of the OTA data for
several other types of PPE (e.g., gloves, eye protection, faceshields,
safety shoes and hard hats) with usage data from the 1989 PPE survey
also indicated no clear shift in usage for these types of PPE. Thus,
OSHA believes that these estimates of PPE usage in construction are
reasonable. However, as will be discussed further below, OSHA is
conducting a survey to gather more up-to-date information on PPE use
and payment. This survey will be used to update the estimates of usage
of PPE in construction.
To confirm the overall accuracy of the survey data on PPE use in
construction, the Agency contacted several PPE distributors to obtain
information on the market share for various PPE items in the
construction industry, as compared to market share in other sectors.
Comparing OSHA's estimates of the percentage of PPE costs attributable
to construction with the distributors' estimates of the share of PPE
sales occurring in the construction industry shows that OSHA's
estimates of PPE use in construction are correct and may, if anything,
be high. If OSHA's estimates are high, this analysis would tend to
overstate the potential costs and impacts of the proposed rule on the
construction industry. For example, OSHA's analysis estimates that
approximately 25 percent of the costs of all PPE occur in the
construction sector, while the distributors indicated that the
construction sector accounted for 20 percent of the value of PPE sales.
Estimating use patterns for some specific types of PPE required
additional analysis. For example, the OTA survey did not collect data
on fall protection PPE. The number of employees using fall protection
in construction was estimated from an analysis of occupational
categories, based on data from BLS's 1994 Occupational Exposure Survey
(OES) 5. Additionally, the OES data allowed OSHA to estimate
the number of workers requiring welding equipment in construction and
in some industries not covered by the 1989 PPE survey (i.e., SICs 15,
16, 17, 46, 47, 59, 73, 87 and 89). Finally, because the OTA survey did
not have data on the extent of the use of shoes with metatarsal guards,
OSHA relied on the 1989 PPE survey data, which show that about 11
percent of all safety shoes have metatarsal guards; this percentage was
applied to the OTA estimates of safety shoe usage to estimate
metatarsal guard usage in the construction industry.
---------------------------------------------------------------------------
\5\ For workers in some occupations, such as structural metal
workers and roofers, all employees were assumed to use fall
protection, clearly an overestimate. For workers in other
occupations, 10-20 percent were assumed to use fall protection.
---------------------------------------------------------------------------
Table VI-1 shows OSHA's estimates of the extent of PPE use in the
industries covered by the proposed rule. A total of 19.6 million
workers are estimated to wear one or more kinds of PPE in these
industries. Non-prescription safety glasses are worn by approximately
6.7 million workers, while 7.7 million workers wear hard hats and 10.6
million wear protective gloves of various kinds. Industries with the
largest number of PPE-wearing employees include construction special
trades (SIC 17), with 2.9 million such employees, building construction
trades (SIC 15), with 1.2 million, wholesale trade--durable goods (SIC
50), with 1.6 million, and wholesale trade--non-durable goods (SIC 51),
with 1.2 million PPE-wearing employees.
BILLING CODE 4510-26-P
Table VI-1
BILLING CODE 4510-26-C
Data on PPE Payment Patterns
To derive estimates of current employer payment patterns with
regard to PPE, the Agency consulted several sources: a national study
of collective bargaining agreements (BNA 1995), information from OSHA's
State-plan States, information from OSHA's 1989 PPE survey (ERG 1998),
and a panel of experts on PPE payment patterns (ERG 1998).
The data available to OSHA suggest that most employers in OSHA's
jurisdiction are already paying for the PPE they provide to their
employees to comply with OSHA standards. They do so because of labor-
management agreements and collective bargaining contracts, and for
other obvious reasons: if they pay for the PPE, they know what kinds of
PPE their employees are using, can ensure that it is replaced when
needed, and can require standardized procedures for cleaning, storing,
and maintaining it. In other words, they can control what PPE is used
and how it is used, and thus can have greater assurance that they are
in fact in compliance with OSHA's standards. Other reasons why
employers prefer to pay for PPE, according to the expert panel convened
by OSHA to obtain information on PPE patterns of use and payment, are:
 The employer has experience with injuries that could have
been prevented by PPE use;
 The employer has received input from his/her insurance
carrier;
 The employer's staff and employees are aware of job-
related hazards and know about PPE use; and
 The employer is concerned about the likelihood of an OSHA
inspection (ERG 1998).
A recent study of collective bargaining agreements showed that 55%
of contracts mentioning safety equipment require employers to pay for
PPE, while only 11% of such agreements require the employee to pay for
any PPE; this latter figure includes payment for all kinds of safety
shoes. In addition, nearly half of all U.S. workers work in States
covered by OSHA State plans. These States generally require employers
to pay for mandatory PPE, with the exception, in some cases, of safety-
toe footwear and prescription safety glasses. For example, Kentucky,
which operates its own OSHA program under an approved State-plan,
requires employers to pay for all required PPE except that which is
personal in nature and is also used off the job. California has
required employers to pay for all PPE, without exception, for many
years. OSHA is currently reviewing the PPE payment policies of all of
its State-plan partners; to date, all of the State plans responding
have a policy of requiring employers to pay for most PPE items.
To develop detailed estimates of sectoral patterns of PPE payment,
OSHA recently sponsored an expert panel of individual representatives
from industry, labor, insurance companies, and safety equipment
manufacturers and distributors. These individuals are recognized for
their knowledge of PPE use and purchasing patterns in the general
industry, construction, and maritime sectors. Many panelists indicated
that the kinds of PPE that could potentially be affected by the
proposed rule, i.e., those where a shift in costs from employees to
employers could potentially occur, were hard hats, gloves, safety
glasses (non-prescription), goggles, safety shoes (other than safety-
toe safety shoes), welding hoods and goggles, faceshields, fall
protection equipment, and chemical protective clothing. Based on the
responses of individual members of the panel, this industry profile
includes all the major types of PPE identified as having such
potential. However, the Agency solicits comments on any types of PPE
not included in this analysis, the extent of the use of such PPE in
each affected industry, and the extent to which employers do not
currently pay for such PPE, in each affected industry.
Table VI-2 summarizes the findings of the expert panel, which are
presented as the percentage of all PPE costs currently estimated to be
borne by employers, by industry and type of PPE. The table reports the
median response, i.e., the median percentage reported by the experts in
each case, except for manufacturing, where the panel estimated that
100% of costs for the affected kinds of PPE are being borne by
employers (OSHA has reduced this to 95% to be conservative) and the
service industries (where OSHA assumed that the percentages attributed
by the experts to the wholesale trade industry would be applicable to
all service industries). The panel's estimates of the percentage of PPE
costs currently being borne by employers were generally highest for
manufacturing and transportation and lowest for construction and
shipyards, although estimates even within these industries varied
widely by type of PPE. For example, the panel estimated that 87% of
employers in the transportation industry currently pay for non-
prescription safety eyewear, while 91.5% percent of these employers
currently pay for chemical protective clothing. In construction, where
the pattern of employer payment for PPE is generally lower than for
other industries, 70% of employers are estimated currently to pay for
non-prescription safety eyewear, while only 50% pay for gloves to
protect against abrasion and laceration.
OSHA believes that Table VI-2 generally presents an accurate
picture of current PPE payment patterns in various industries at the
present time, comporting with the Agency's own experience. Thus the
proposed rule, rather than representing a departure from current
practice, will largely reflect it.
BILLING CODE 4510-26-P
Table VI-2
BILLING CODE 4510-26-C
In order to further ensure that the Agency has accurate data on
current patterns of PPE payment and usage, OSHA is conducting a
nationwide telephone survey of American workplaces dealing specifically
with that question. The Agency intends to have the results available
for review and comment before the final rule is published. The
information from the survey will be used to modify and update this
economic analysis as needed with respect to both PPE use patterns
(Table VI-1) and PPE payment patterns (Table VI-2). When the PPE survey
is completed, OSHA will reopen the record to enable the public to
comment on the results.
Technological Feasibility
This rule does not change any PPE requirements, but affects only
the issue of who pays for PPE. All of the PPE affected by this
rulemaking has already been found to be technologically feasible in
other rulemakings. Personal protective equipment is widely
manufactured, distributed, and used in workplaces in all of the
industries covered by OSHA standards. The proposed rule thus raises no
issues of technological feasibility.
Benefits of the Proposed Rule
Both OSHA's own enforcement experience and the experience of
members of OSHA's expert panel show that when employers do not provide
and pay for PPE, it is often not worn, is worn improperly, or is not
cared for and replaced appropriately. In the words of one panel member:
Our experience has been that the biggest factor in determining
proper, effective use of eye protection is effective supervision--if
the supervisor leads by example; if he/she reinforces use of eye
protection by the workers under his/her supervision; if he/she has
replacement eye protection readily available when it gets scratched
or otherwise damaged or lost--then there is more likely to be a
pattern of effective use among the workforce. This is significantly
more difficult to accomplish when employees are expected to buy
their own PPE. (It is not generally feasible to provide PPE and then
charge the workers for it.) . . . It is also difficult to ensure
that the employees are properly trained in the care and use of PPE
if the employer does not provide it. (ERG 1998)
Thus, two key problems can occur when employers fail to pay for
PPE: either the PPE is not worn in cases where it is needed to protect
against injury or illness, or the PPE is worn inappropriately. The
consequences of these failures are the same: employees are exposed to
chemical, physical, or safety hazards in the workplace, which, in turn,
results in injuries, illnesses, and death (as documented in OSHA's
recent respiratory protection rule (63 FR 1152, January 8, 1998).
Another panel member tried to estimate the quantitative differences
between employer and employee payment for PPE:
When employees are made responsible for purchasing their own
PPE, I believe that their probabilities of (1) actually purchasing
PPE, and (2) purchasing appropriate PPE, are diminished because they
must use some or all of their funds for this equipment, whereas they
would rather save this money for their own purposes, and they simply
don't have the resources to understand and choose among available
PPE. There is always a reluctance to use one's own funds to pay for
replacing or repairing workplace PPE. I believe that when employees
are responsible for their own PPE that a higher incidence of non-use
or misuse occurs. I would expect that figure would be approximately
40% for employee-purchased PPE versus 15 to 20% for employer-
purchased PPE. (ERG 1998)
The estimates provided by this expert panelist are consistent with
the statements of other panelists, as well as with OSHA's enforcement
and regulatory experience. Most panel members indicated that if the
employer did not pay for PPE, the PPE was not provided. To the extent
that this is the case, OSHA's estimates may actually underestimate the
effects of having employers pay for and provide PPE. To estimate the
benefits of employer PPE payment, OSHA used the panel's estimates of
the differences in effectiveness between employee-paid and employer-
paid PPE, and the estimates of the total numbers of injuries, illnesses
and deaths preventable by PPE that were developed for the 1994 PPE
rulemaking. OSHA invites comment from those with experience in this
area, to assist the Agency to refine, revise if necessary, or confirm
the accuracy of this estimate, as discussed below.
In 1994, OSHA examined, for each body part, the number of injuries
preventable by the then newly revised PPE rule [59 FR 16352]. OSHA
reviewed 1,170 OSHA Form 200s describing almost 64,000 injuries; these
forms had been submitted to OSHA in response to the 1989 PPE survey.
The profile of injuries, as defined by body part, very closely tracked
those in BLS's injury data base [OSHA 1994, pp. V-11-13]. Information
on the nature of the injury and the circumstances surrounding the
accident was used to determine the extent to which PPE would have
prevented the injury. Most injuries were not considered preventable by
PPE. For example, sprains and strains (nature), or injuries caused by
overexertion (circumstance), were considered not to be preventable by
PPE. Eye injuries, by contrast, tended to be highly preventable.
From these injury descriptions, it was possible to determine that
approximately one-third of injuries in general industry were
preventable with PPE. However, within this group, it was apparent that
PPE could be particularly effective in protecting certain body parts.
As indicated in the 1994 analysis [OSHA 1994, p. V-16], eye injuries
were estimated to be 95 percent PPE preventable; foot and toe, 75
percent; face and ear, 68 percent; and hand and finger, 63 percent.
Head injuries were judged to be 45 percent preventable. Over 90 percent
of these injuries were incurred by production workers in the subset of
high-hazard industries selected for study in the PPE survey; in other
words, they reflect the sort of preventable process-related PPE
injuries which Sec. 1910.132 was intended to prevent. The full analysis
of the injuries judged to be preventable through the proper use of PPE
is presented in detail in the Regulatory Impact Assessment [OSHA 1994].
In that analysis, OSHA found that almost 900,000 injuries in the
general industry and maritime sectors would be preventable by full
compliance with the new PPE rule, i.e., that 900,000 injuries could
have been prevented if employees had actually worn the appropriate
protective equipment. This analysis did not cover the construction
sector. OSHA assumed that the same preventability factors would apply
in construction as in the general industry and maritime sectors.
For the analysis of the Employer Payment for PPE rule, OSHA took
into consideration the fact that compliance with the rule will not be
perfect and that the likelihood of full compliance is influenced by who
pays for the PPE. Therefore, OSHA developed an estimate of the number
of injuries, illnesses, and deaths potentially averted by this rule by
combining the following information: 6
---------------------------------------------------------------------------
\6\ The number of injuries resulting from the lack of
appropriate PPE can be determined by examining both the likelihood
of employers not providing PPE under the two payment scenarios, and
data on the current pattern of payment for PPE. The equation for a
particular body part and relevant type of PPE can be described this
way:
((.4Ep/(.4Ep + .175En)) x total PPE-preventable injuries = #
injuries among employees paying for their own PPE Where:
Ep = # of employees paying for their own PPE
En = # of employees not paying for their own PPE (employer
paying)
Having determined the number of injuries falling into this
group, it is possible to estimate the number of injuries preventable
by reassigning payment responsibility to the employer. Once the
number of injuries among the employee-paying group is derived, it
has to be recognized that not all of these will be preventable by
switching payment systems. Since the number of injuries was derived
assuming that 60% of the employee-paying population is already
wearing PPE, the proper comparison is between the 40% nonusage in
the employee-paying population and the 17.5% nonusage in the
employer-paying population. Therefore, the percentage of injuries
remaining after switching to employer-payment would be .175/.4 or 44
percent of the original number of injuries among the employee-paying
group. Thus, 1-0.175/.4 provides the percentage prevented. In the
abstract, this equation is:
The number of injuries prevented by switching to employer
payment= (# of PPE-related injuries occuring among the employee-
paying group) x 1-(% of time PPE is not worn when employers pay /
% of time PPE is not worn when employees pay))
Using the specific numbers in this analysis, this becomes:
The number of injuries prevented by switching to employer
payment= (# of PPE-related injuries occurring among the employee-
paying group) x (1-(.175/.4))
In other words, 56 percent (1-(.175/.4)) of these injuries would
be preventable by switching payment patterns from employees to
employers.
This analysis has included only half of the PPE-related injuries
occurring currently in the United States because approximately half
of all employees are already covered by employer payment
requirements in State-plan States. This analysis also focuses only
on those body parts, e.g., eyes, head, hand, foot, most likely to be
protected by PPE.
---------------------------------------------------------------------------
(1) the number of injuries preventable through proper use of PPE,
classified by type of PPE (from 1994 economic analysis);
(2) the expert panel member's estimate that PPE will be missing or
used inappropriately 17.5% of the time when the employers pay for their
employee's PPE;
(3) the expert panel member's estimate that PPE will be missing or
used inappropriately 40% of the time when employees pay for their own
PPE; and
(4) the number of employees with employer paid PPE (see the
Industry Profile section of this analysis).
Table VI-3 presents the number of injuries preventable by this
rulemaking in general industry and construction, by body part. This
analysis indicates that the proposed rule would avert approximately
47,785 injuries annually.
Although the primary benefit of the proposed rule is that it will
avert injuries and save their associated costs, there are cases where
the lack of appropriate PPE has been fatal. At the time of the 1994
rulemaking, 24 fatal head injuries were considered to be preventable
every year in general industry through the use of PPE. Based on that
analysis, the Agency estimates that 6.9 percent of these cases, or an
average of 1.7 (.069 x 24) fatal head injuries annually, will be
averted by the proposed rule. According to BLS's Census of Fatal
Occupational Injuries, there were 263 fatal head injuries in the
construction industry in 1993, 44 of which were coded as "struck by"
or "struck against." Since a larger portion of employees pay for
their own PPE in construction, the impact of the proposed rule is
likely to be greater in construction than in general industry. OSHA
therefore estimates that 12.7 percent of these 44 fatalities are
preventable, for a total of 5.6 (44 x .127) averted fatal head
injuries annually. Therefore, in general industry and construction, the
Agency estimates that approximately 7 (5.6 + 1.7) lives could be saved
annually by compliance with the proposed rule.
The Agency also believes that the proposed rule will achieve
substantial benefits in the area of fall protection, particularly in
construction. The proposal would prevent a number of fatalities and
severe injuries that are now occurring either because employee-provided
PPE provides inadequate protection or because the employee arrives on
site without the necessary PPE. For example, OSHA estimated in the
Regulatory Impact Analysis for Subpart M that fall protection systems
would prevent nearly 80 fatalities and 26,600 lost workdays annually.
To the extent that employers provide more effective harnesses and
lanyards than those currently being provided by employees, or ensure
that this equipment is available for use by the employee, this rule
will avert deaths and injuries caused by falls. However, at the current
time the Agency does not have sufficient detail on these accidents to
quantify the benefits of this effect.
Table VI-3.--Injuries Judged To Be Preventable If Employers Are Required To Pay For PPE Now Being Paid For By
Employers
----------------------------------------------------------------------------------------------------------------
Total Injuries
Total injuries judged to
Injuries Percent of judged to judged to be
judged to those judged be be prevented
Body part be to be preventable preventable by
preventable preventable and within among requiring
by PPE by this scope of employees employer
rulemaking this paying for payment for
\1\ rulemaking PPE PPE
----------------------------------------------------------------------------------------------------------------
General Industry
Eye...................................... 117,296 31.0 36,362 8,085 4,548
Face & ear............................... 36,810 50.0 18,405 4,427 2,490
Head & neck.............................. 116,050 50.0 58,025 14,272 8,028
Hand & finger............................ 281,221 50.0 140,611 30,771 17,309
Foot & toe............................... 129,452 5.5 7,120 4,109 2,311
------------------------------------------------------------------
Subtotal............................... 680,830 ............. 260,522 61,665 34,686
Construction:
Eye...................................... 25,524 31.0 7,912 3,824 2,151
Face & ear & head & neck................. 13,445 50.0 6,722 3,027 1,703
Hand & finger............................ 44,589 50.0 22,295 15,509 8,724
Foot & toe............................... 21,399 5.5 1,177 926 521
------------------------------------------------------------------
Subtotal............................... 104,957 ............. 38,106 23,286 13,098
==================================================================
Total.................................. 785,787 ............. 298,629 84,951 47,785
----------------------------------------------------------------------------------------------------------------
\1\ Only half of these injuries are judged to be within the direct coverage of this rule because employer
payment rules already apply in State plan States; non-prescription safety glasses constitute approximately 62%
of safety glasses; shoes with metatarsal guards account for 11% of all safety shoes.
Source: OSHA Office of Regulatory Analysis.
Direct Savings Resulting From the Reduction in Injuries Attributable to
the Proposed Rule
This section evaluates the direct savings associated with the
injuries averted by the proposed rule; it does not attempt to place a
monetary value on the lives that will be saved by compliance with the
rule or on pain, suffering and other similar effects avoided. These
other effects of occupational injuries and illnesses include the pain
and suffering experienced by workers and their families, loss of
esteem, disruption of family life, and feelings of anger and
helplessness. Occupational injuries and illnesses impose an enormous
burden on society in addition to the direct outlays of money for
medical expenses, lost wages and production, and other purely economic
effects.
Some aspects of the burden of occupational injuries and illnesses
can be quantified in monetary terms. These aspects of the problem of
work-related injuries and illnesses can be measured by the losses
experienced by employees and by the other costs that are externalized
to the rest of society. One consequence of the failure of PPE programs
to prevent job-related injuries is the growth of enormously expensive
income maintenance programs such as workers' compensation and long-term
disability programs. These costs impose a burden on society separate
from and in addition to the human toll in pain and suffering caused by
workplace-related injuries.
One measure of some of the losses associated with lost time due to
work-related injuries is the lost output of the worker, measured by the
value the market places on his or her time. This value is measured as
the worker's total wage plus fringe benefits. Other costs include: (1)
Medical expenses, (2) costs of workers' compensation insurance
administration, (3) indirect costs to employers (other than those for
workers' compensation administration), and (4) legal expenses of
employees.
OSHA estimates the value of lost output by starting with workers'
compensation indemnity payments and then adding other losses associated
with work-related illnesses and injuries. The Agency then follows four
steps to arrive at a value for lost output:
(1) Calculate PPE-related illness and injury in terms of workers'
compensation indemnity payments;
(2) Add the difference between the value of these indemnity
payments and the worker's after-tax income, based on various studies
comparing workers' compensation payments with after-tax income. This
step estimates the magnitude of lost after-tax income;
(3) Add the estimated value of taxes, based on the typical value of
taxes as a percentage of after-tax income. This step estimates the
value of total income lost; and
(4) Add the value of fringe benefits, based on data on fringe
benefits as a percentage of total income. This step estimates the total
market value of the lost output.
In this approach, injuries are clearly undervalued, because OSHA
assumes that the value associated with injuries is the same as the
value of claims for workers' compensation. An analysis of workers'
compensation claim data from the Argonaut Insurance Company for 1993
show that the weighted average claim value of the injuries shown in
Table VI-3 is $2,408. Based on nationwide estimates from the U.S.
Social Security Administration, an average of 58 percent of these
payments are paid out for indemnity, and the remaining 42 percent are
paid out for medical costs [USSA, 1993].
Indemnity/Lost Income
Workers' compensation indemnity payments typically take two forms:
temporary total disability payments, which cover absences from work
prior to the stabilization of the condition, and permanent disability
payments, which compensate the worker for the long-term effects of a
stabilized condition. On a nationwide basis, it is estimated that
permanent disability payments account for 61.5 percent of all indemnity
payments [Berkowitz and Burton].
The extent to which income is replaced by each type of indemnity
payment (i.e., temporary or permanent) differs. First, although rules
vary by State, temporary disability income is designed in most States
to replace two-thirds of the worker's before-tax income. However, most
States place a maximum and minimum on the amount of money paid out to
the worker, regardless of his/her actual former income. Studies by the
Worker Compensation Research Institute (WCRI) show that temporary total
disability payments replace between 80 to 100 percent of the after-tax
income of the majority of workers [WCRI, 1993]. From 3 to 44 percent of
the workers receive less than 80 percent of their after-tax income, and
from 0 to 16 percent receive more than 100 percent of their after-tax
income. Unfortunately, WCRI does not provide estimates of the average
replacement rates for all workers in a State. However, based on these
data, it seems reasonable to assume that, on average, workers receive
no more than 90 percent of their after-tax income while on temporary
disability. On the other hand, data show that permanent partial
disability payments replaced 75 percent of income lost in Wisconsin, 58
percent in Florida, and 45 percent in California [Berkowitz and
Burton]. OSHA uses the simple average of these three--59 percent--to
estimate the extent of after-tax income replacement for permanent
partial disabilities 7.
---------------------------------------------------------------------------
\7\ The use of a simple average rather than a population-
weighted average results in a lower estimate of income loss and is
thus a conservative approach.
---------------------------------------------------------------------------
Based on these data, OSHA estimated after-tax income from the total
indemnities paid for injuries preventable by the proposed rule by
assuming, based on estimates for all workers' compensation claims
provided by Berkowitz and Burton, that temporary disabilities account
for 38.5 percent of all PPE-preventable indemnity payments and replace
90 percent of after-tax income, and that permanent partial disabilities
8 account for 61.5 percent of PPE-preventable indemnity
payments and replace 60 percent of after-tax income.
---------------------------------------------------------------------------
\8\ Permanent "partial" disabilities include all permanent
disabilities, ranging from 1 to 100 percent disabled.
---------------------------------------------------------------------------
Fringe Benefits
In addition to after-tax income loss, lost output includes the
value of taxes that would have been paid by the injured worker and
fringe benefits that would have been paid by the worker's employer.
Total income-based taxes (individual Social Security payments, Federal
income tax, and State income tax) paid were assumed to be 30 percent of
total income. Fringe benefits were estimated as 39 percent of before-
tax income, based on the average fringe benefit data provided by BLS
[BLS, 1997].
Tables VI-4 and VI-5 apply the estimation parameters developed
above to calculate the total value of the lost output potentially
associated with temporary and permanent partial disabilities,
respectively, once the final standard has been fully implemented. As
shown, the total value of the lost output associated with potentially
avoidable accepted workers' compensation claims that result in
temporary total disability is estimated at $55.8 million, and that
associated with permanent partial disabilities at $129.7 million a
year.
Table VI-4.--Value of Lost Output Associated With Temporary Total
Disabilities Resulting From PPE-Preventable Injuries
------------------------------------------------------------------------
Injuries/costs
Type of benefit prevented
------------------------------------------------------------------------
Total Number of PPE-Preventable Cases Annually.......... 47,785
Weighted Average Total Cost per Claim................... $2,408
Indemnity Share of Payment (58% of Total Claim)......... $1,396
Medical Share of Payment (42% of Total Claim)........... $1,011
Value of Temporary Total Disability Indemnity Payments $25,689,814
\1\....................................................
Lost-After-Tax Income Above the Value of Indemnity $2,854,424
Payments \2\...........................................
Lost Value of Tax Payments \3\.......................... $11,866,247
Lost Value of Fringe Benefits \4\....................... $15,426,122
------------------------------------------------------------------------
Total............................................... $55,836,606
------------------------------------------------------------------------
\1\ Number of cases X indemnity payments per case X 38.5 percent
indemnity value share attributable to temporary total disability.
\2\ Temporary total disability payments have been estimated to equal 90
percent of lost after-tax income.
\3\ Taxes are estimated to equal 30 percent of before-tax income.
\4\ Fringe benefits=39 percent of wage income [BLS, 1995].
Source: U.S. Department of Labor, OSHA, Office of Regulatory Analysis.
Table VI-5.--Value of Lost Output Associated With Permanent Partial
Disabilities Resulting From PPE-Preventable Injuries
------------------------------------------------------------------------
Injuries/costs
Type of benefit prevented
------------------------------------------------------------------------
Number of PPE-Preventable Injury Cases.................. 47,785
Value of Indemnity Payments (Permanent Partial) \1\..... $41,036,975
Lost-After-Tax Income Above the Value of Indemnity $28,517,220
Payments \2\...........................................
Lost Value of Tax Payments \3\.......................... $26,142,441
Lost Value of Fringe Benefits \4\....................... $33,985,174
---------------
Total............................................... $129,681,810
------------------------------------------------------------------------
\1\ Number of cases prevented X indemnity payments per claim X 61.5
percent value share attributable to permanent partial disability.
\2\ Permanent partial disability payments are estimated to equal 59
percent of the value of lost after-tax income.
\3\ Taxes are estimated to be 30 percent of before tax income.
\4\ Fringe benefits=39 percent of wage income (BLS, 1995].
Source: U.S. Department of Labor, OSHA, Office of Regulatory Analysis.
Medical
Medical costs do not include any first-aid costs incurred by the
employer and, in some cases, costs for transportation to a medical
facility; however, most elements of medical costs are included in the
share of payments paid for medical costs, estimated to be 42 percent of
the cost of the claims. Costs for treating injuries will remain
relatively constant, regardless of who is actually paying for the
medical care (i.e., the employer through workers' compensation, or a
medical insurer). As presented in Table VI-6, OSHA estimates the
medical costs of injuries preventable by the proposed standard to be
$48.3 million a year.
Table VI-6. Annual Social Benefits Associated With the Reduction in
Injuries as a Result of Employer Payment for PPE
------------------------------------------------------------------------
Injuries/costs
Type of benefit prevented
------------------------------------------------------------------------
Lost Output Associated with Temporary Disabilities \1\.. $55,836,606
Lost Output Associated with Permanent Disabilities \2\.. 129,681,810
Medical Costs \3\....................................... 48,319,399
Insurance Administrative Costs \4\...................... 29,912,009
Indirect Costs \5\...................................... 23,929,607
---------------
Total............................................... 287,679,432
------------------------------------------------------------------------
\1\ Derived from Table VI-4.
\2\ Derived from Table VI-5.
\3\ Calculated by multiplying the number of injuries by the value of
medical payments presented in Table VI-4.
\4\ Calculated by multiplying the total value of claims times 26
percent.
\5\ Calculated by multiplying the total value of workers' compensation
medical and indemnity payments times 20.8 percent.
Source: U.S. Department of Labor, OSHA, Office of Regulatory Analysis.
Administrative Costs
The administrative costs of workers' compensation insurance include
all of the costs associated with the administration of workers'
compensation insurance. Such costs include any funds spent directly on
claims adjustment, as well as all other administrative costs incurred
by the insurer in conjunction with experienced losses.
OSHA estimates the administrative costs of PPE-related injury
claims as follows:
 Costs to private insurance companies are estimated, based
on 1990 data, as 35.8 percent of the costs of incurred claims [Klein et
al., 1993]. These costs include those for claims adjustment, sales,
general expenses, taxes, licenses, and fees (historical data show that
all of these elements of private insurance costs increase as the value
of benefits paid out increases).
 Costs to State funds were estimated, based on 1990 data,
as 17.8 percent of the costs of incurred claims [Klein et al., 1993].
These costs include those for claims administration and for costs
labeled as "general costs."
 Costs to self-insured companies, estimated by the Social
Security Administration to be 6.8 percent of the value of benefits paid
in 1990 [Social Security Administration, 1993].
To estimate the aggregate value of the administrative costs of
insurance, these costs are weighted by the value of the benefits
payments made by each type of insurer (i.e., private insurer, state
fund, etc.), based on 1990 data. This calculation is shown in Table VI-
7, which indicates that estimated weighted administrative costs
constitute 26 percent of the total value of claims. The total value of
claims includes the value both of the indemnity and medical portions of
insurance company payments. The costs shown in Table VI-7 represent the
administrative costs associated with workers' compensation.
Table VI-7.--Derivation of Average Administrative Costs as a Percent of the Value of Claims, by Type of
Insurance
----------------------------------------------------------------------------------------------------------------
Administrative
costs as a
percentage of Percentage of
Type of insurance incurred total benefits Weighted value
claims \1\ paid \2\
(1990) (1990)
----------------------------------------------------------------------------------------------------------------
Private Insurance............................................... 35.5 58.1 20.6
State Fund...................................................... 17.8 22.8 4.1
Self-Insurance.................................................. 6.8 19.4 1.3
-----------------
Total....................................................... .............. .............. 26.0
----------------------------------------------------------------------------------------------------------------
\1\ From Klein et al. (1993) for private insurance and State funds, and U.S. Social Security Administration
(1993) for self-insurance.
\2\ Values for administrative costs as a percent of incurred claims, weighted by total benefits paid.
It should be noted that cases that fall outside the workers'
compensation system will typically have administrative costs associated
with them--indeed, to the extent they are borne by private medical
insurers, they will carry relatively greater administrative expenses
than the average estimated here.
Indirect Costs
The term "indirect costs", describes the costs of work-related
injuries that are borne directly by employers but are not included in
workers' compensation claim costs. Such costs are best estimated by
looking at the costs an employer actually incurs at the time a workers'
compensation claim is filed. These costs include a number of social
benefits, such as payments of sick leave to workers for absences that
are shorter than the workers' compensation waiting period, losses in
production associated with the injured workers' departure and return to
work, losses in the productivity of other workers, and a wide variety
of administrative costs other than those borne directly by the workers'
compensation insurer, e.g., medical management costs for the injured
worker. Based on a study [Hinze & Applegate] of indirect costs of
injuries in the construction industry, OSHA estimates that indirect
costs are 20.8 percent of the value of workers' compensation medical
and indemnity payments, i.e., add up to an indirect cost multiplier of
1.21. As indicated in Table VI-6, the Agency estimates that this
proposed revision to the PPE standard will save $23.9 million annually
in these indirect costs.
Taken in its entirety, the proposed amendment to the PPE standard
is estimated to save $287.7 million annually in direct costs savings by
avoiding preventable injuries. These direct cost savings do not include
the economic value of the loss of leisure time. They do not account for
the burden of chores that are forced on other household members or
hired out. The direct savings also do not include the value of
preventing pain and suffering or loss of life.
Costs of Compliance
To assess the costs employers may incur to comply with the proposed
rule, OSHA first estimated the total costs associated with PPE
currently covered by OSHA PPE standards and affected by this rule.
OSHA's estimates of the costs of all required PPE were derived from the
PPE use estimates shown in Table VI-1, subtracting employees in State
plan States, who, as indicated in the previous section, comprise
approximately half of the affected workers. Unit costs for equipment
were taken from the Agency's economic analysis (Ex. 56, Docket S-060)
in support of the 1994 rulemaking that revised the personal protective
equipment standard (29 CFR 1910.132). Data from that analysis were
supplemented with new estimates of the unit costs of welding equipment
and goggles, and of fall protection equipment (ERG 1998). All cost
estimates were then updated to reflect 1998 prices.9 This
figure was then multiplied by the percentage of these costs not
currently being borne by employers (see Table VI-2).
---------------------------------------------------------------------------
\9\ Annualized costs, updated from those used in the Final
Regulatory Impact Analysis for the 1994 PPE rulemaking (OSHA 1994),
are hard hats, $6.67; non-prescription safety glasses, $6.69;
goggles, $15.07; gloves, $14.07; and faceshields, $13.45. According
to the expert panel, welders need both helmets and goggles at
different times of the year. Welding helmets were assumed to have a
life expectancy of 5 years and to cost $32.00; welding goggles were
assumed to be replaced every 3 months, and to cost $11.00 (these
assumptions yield a combined annualized welding unit cost of
$51.80). Fall protection (body harness and lanyard) is assumed to
have a life expectancy of 5 years, and to cost $60.00 (harnesses)
and $60.00 (lanyards), respectively, yielding a combined annualized
fall protection unit cost of $29.27. Reusable chemical protective
coveralls were assumed to have a life expectancy of one year and to
cost $20.00, based on a current supply catalog (Lab Safety 1995).
Safety shoes with metatarsal guards cost approximately $100 (ERG
1998); based on an average two year life (OSHA 1994) this yields an
annualized cost of $55.17.
---------------------------------------------------------------------------
Table VI-8 shows the total annualized costs of compliance for the
proposed rule, by industry and kind of PPE. Total annualized costs are
$61.9 million. Gloves and safety shoes (with metatarsal guards) account
for the largest portion of these costs, at $17.3 and $14.3 million,
respectively; welding helmets/goggles account for an additional $10.2
million per year. These three types of PPE together account for 68
percent of all of the proposed rule's costs of compliance. Construction
special trades (SIC 17), at $24.2 million, and building construction
contractors (SIC 15), at $6.2 million, are the industries estimated to
incur the greatest costs.
BILLING CODE 4510-26-P
Table VI-8Table VI-9
BILLING CODE 4510-26-C
Economic Impacts and Certification of No Significant Impact
OSHA analyzed the economic impacts of the proposed rule by
calculating average annualized compliance costs as a percentage of the
sales and profits of all establishments in affected industries. As
shown in Table VI-9, annualized costs to employers for establishments
in all affected industries are less than 0.01 percent of sales and only
0.02 percent of profits. Even in the most affected industry, Welding &
Other Repair (SIC 76), annualized costs are still less than 0.5 percent
of profits. Costs of this magnitude do not threaten the financial
health of even the most marginal firm. Since most employers in most
industries already pay for PPE, the major competitive effect of the
rule is to limit any small short-term competitive advantage a few firms
gain by not paying for PPE, i.e., by requiring their employees to pay
for PPE that other employers in their industry pay for. As shown in the
benefits section, many firms already pay for PPE because it proves
cost-effective; many other firms may find that, when benefits as well
as costs are considered, the costs of PPE are more than offset by these
benefits.
OSHA also assessed the economic impacts of the proposed rule on
small firms within each affected industry. Impacts on two sizes of
small firm were estimated: those with fewer than 500 employees, and
those with fewer than 20 employees. In using 500 employees and 20
employees to characterize firms for this screening analysis for
impacts, OSHA is not proposing definitions of small business that are
different from those established by the Small Business Administration
(SBA) in its Table of Size Standards. The SBA size definitions are SIC-
code specific, and are generally expressed either in terms of number of
employees or as annual receipts. Instead, OSHA is using 500 employees
and 20 employees as a simple method of screening for significant
impacts across the large number of industries potentially affected by
the proposed rule. Use of this approach avoids the need to interpolate
because the underlying industry profile data do not correspond with the
SIC-specific size categories established by the SBA. (OSHA notes that,
for almost all of the industries affected by this rulemaking, the SBA
size definitions fall within the 20- to 500-employee range.) OSHA
believes that this screening approach will capture any significant
impacts on small firms in affected industries. The Agency welcomes data
supporting this assumption or data demonstrating that firms in the
industry-specific size classes used by the SBA will experience
significant impacts.
The results of these analyses (Tables VI-10 and VI-11,
respectively) demonstrate that the annualized costs of compliance do
not exceed 0.1 percent of sales or 1 percent of profits for small firms
in any covered industry. Based on these analyses, in accordance with
the Regulatory Flexibility Act (5 U.S.C. 605) OSHA certifies that the
proposed rule will not have a significant impact on a substantial
number of small entities.
Because statistically meaningful survey data are available only at
the two-digit Standard Industrial Classification level, OSHA has
conducted this analysis of economic impacts at the 2-digit level. OSHA
believes that this level of analysis adequately captures meaningful
variations in economic impacts. Further, the costs are so low that even
if a sub-industry were to have substantially higher costs as a
percentage of sales or profits, the financial health of that sub-
industry would not be in any danger. However, the Agency requests
comment on any specific industry that may have an unusual pattern of
PPE usage or payment that could lead to more severe impacts than those
portrayed for its 2-digit sector.
To test its conclusions that the regulation is economically
feasible and will not have a significant impact on a substantial number
of small entities, the Agency performed sensitivity analyses relying on
"worst case" scenarios. First, in order to test the potential impact
on OSHA's estimates of errors in the expert panel's characterization of
payment patterns, the Agency examined impacts across all industries
using the extreme assumption that employers were not currently paying
for any protective equipment. Under this extreme scenario, the proposed
rule's costs of compliance would quadruple, but the impacts of even
these costs in nearly all industries would still be below one percent
of profits. The largest impacts would occur in SIC 76 (Welding & other
repair), where costs under this extreme scenario would be less than 3
percent of profits.
Second, the Agency focused on the construction industry, which was
not covered in OSHA's 1989 PPE use survey and is estimated in OSHA's
analysis to account for half of the rule's costs of compliance, to see
what the impacts would be under an extremely unlikely scenario that
assumed that all construction employees wore all types of
PPE.10 Under this scenario, the largest impact would occur
in SIC 17, where costs would equal 2.1 percent of profits. This result
shows that, even if the Agency had no data on PPE usage in the
construction industry and simply assumed that every employee in the
sector used every possible type of PPE, the proposed standard would
still be economically feasible and would not have a significant impact
on a substantial number of small entities.
---------------------------------------------------------------------------
\10\ This assumes that all construction employees need welding
PPE, fall protection, chemical protective clothing and safety shoes
with metatarsal guards and that the same workers need faceshields
and standard goggles in addition to welding helmets and welding
goggles.
---------------------------------------------------------------------------
Third, the Agency has constructed a "worst-worst" case scenario
for the construction industry; this scenario assumes that employees in
this industry are wearing all types of PPE and pay for all of this PPE,
i.e., that no employer currently pays anything for any type of PPE.
Even under this scenario, the costs of the proposed rule would be less
than 5 percent of profits and less than 1 percent of revenues for firms
in all construction subsectors. This analysis shows that even if the
Agency had no data on either PPE use or PPE payment patterns in the
construction industry, it would still be reasonable to conclude that
the proposed standard is economically feasible in the construction
sector and that small firms in that sector would not experience
significant impacts.
BILLING CODE 4510-26-P
Table VI-10Table VI-11
BILLING CODE 4510-26-C
Environmental Impact Analysis
OSHA has reviewed this proposed rule in accordance with the
National Environmental Policy Act (NEPA) (42 USC 4321 et seq.), the
regulations of the Council on Environmental Quality (40 CFR Part 1500),
and DOL's NEPA procedures (29 CFR Part II). As a result of this review,
OSHA has determined that this action will have no significant impact on
the external environment.
Unfunded Mandates Analysis
This proposed rule on Employer Payment for Personal Protective
Equipment has been reviewed in accordance with the Unfunded Mandates
Reform Act of 1995 (UMRA) (2 USC 1501 et seq.) and Executive Order
12875. As discussed in the Preliminary Economic Analysis, OSHA
estimates that compliance with the proposed rule will require
expenditures of $62.3 million per year by affected employers.
Therefore, this proposed rule is not a Federal private sector mandate
and is not a significant regulatory action within the meaning of
Section 202 of UMRA. OSHA standards do not apply to State and local
governments except in States that have voluntarily elected to adopt an
OSHA State plan. Consequently, the proposed rule does not meet the
definition of a "Federal intergovernmental mandate" (Section 421(5)
of UMRA). In addition, the Agency has concluded that virtually all
State-plan States, the only States in which this rule could have any
effect on State and local government employers, already require that
employers pay for required PPE. Thus, this rule will not have an impact
on employers who are State and local governments. In sum, this proposed
rule does not impose unfunded mandates within the meaning of UMRA.
References for the Preliminary Economic Analysis
Berkowitz, M., and Burton, J. Permanent Partial Disability Benefits
In Worker Compensation. W. E. Upjohn Institute for Employment
Research, Kalamazoo, Michigan, 1987.
Bureau of Labor Statistics, "Employer Costs for Employee
Compensation Summary", News Release, October 21, 1997.
Bureau of National Affairs, Basic Patterns in Union Contracts,
Fourteenth Edition, BNA Books, 1995.
Business Roundtable. Improving Construction Safety Performance: A
Construction Industry Cost Effectiveness Project. Report A-3,
January, 1982.
Chelius, J., Galvin, D., and Owens, P. Disability: It's more
expensive than you think. Business & Health, pp. 78-84, Mid-March
1992.
Eastern Research Group, Patterns of PPE Provision, 1998.
Hinze, J. and Appelgate, L.L. Costs of Construction Injuries.
Journal of Construction Engineering and Management 117(3):537-550,
1991.
Klein, R.W., Nordman, E.C., and Fritz, J.L. Market Conditions in
Workers' Compensation Insurance. Interim Report Presented to the
NAIC Workers' Compensation Task Force, July 9, 1993.
Lab Safety Supply, General Safety Catalog--Personal & Environmental
Safety, Janesville, WI, January 1995.
Levitt, R.E., Parker, H.W., and Samelson, N.M. Improving
Construction Safety Performance: The User's Role. Prepared under
contract for The Business Roundtable Construction Industry Cost
Effectiveness Project, August 1981.
Levitt, R.E., and Samelson, N.M. Construction Safety Management.
McGraw-Hill Book Company, New York, New York, 1987.
Occupational Safety and Health Administration, Office of Regulatory
Analysis, Background Document to the Regulatory Impact and
Regulatory Flexibility Assessment for the PPE Standard, 1994,
Exhibit 56, S-060.
Office of Technology Assessment, Preventing Illness and Injury in
the Workplace, Volume 2--Part B: Working Papers, 1994; Exhibit 189,
Docket H049.
U.S. Interdepartmental Workers Compensation Task Force. Workers'
Compensation Reform: Challenge for the 80's. 1979.
U.S. Social Security Administration. Annual Statistical Supplement
to the Social Security Bulletin. Washington, D.C., 1993.
Worker Compensation Research Institute. Income Replacement in
California. December, 1993.
Bureau of National Affairs, Basic Patterns in Union Contracts,
Fourteenth Edition, BNA Books, 1995.
VII. Public Participation
Written Comments
Interested parties are invited to submit written data, views, and
comments with respect to this proposal. These comments must be
postmarked by June 14, 1999. Written comments are to be submitted in
quadruplicate, or in 1 original (hard copy) and 1 disk (3\1/2\" or
5\1/4\") in WordPerfect 5.0, 5.1, 6.0, 8.0, or ASCII, to the Docket
Office, Docket No. S-042, Room N2625, U.S. Department of Labor, 200
Constitution Ave. N.W., Washington, DC. 20210.
Comments may also be submitted electronically through OSHA's
Internet site at URL, http://www.osha-slc.gov/e-comments/e-comments-
ppe.html. Please be aware that information such as studies, journal
articles, and so forth cannot be attached to the electronic response
and must be submitted in quadruplicate to the above address. Such
attachments must clearly identify the respondent's electronic
submission by name, date, and subject, so that they can be attached to
the correct response. These comments must be transmitted by June 14,
1999.
All comments, views, data, and arguments received within the
specified comment period will be made part of the record and will be
available for public inspection and copying at the above Docket Office
address.
Notice of Intention To Appear at the Informal Hearing
Under section 6(b)(3) of the Occupational Safety and Health Act,
OSHA is scheduling an informal public hearing to provide the public
with an opportunity to testify on the issues raised by the proposed
standard. The informal public hearing will be held in Washington, DC on
June 22, 1999, and will extend through July 2, 1999, depending on the
number of persons intending to participate.
The hearing will begin at 9:30 a.m. on June 22, 1999 in the
auditorium of the Frances Perkins Building, U.S. Department of Labor,
200 Constitution Avenue NW, Washington, DC 20210.
All persons who wish to participate in the hearing must file four
copies of a notice of intention to appear. This notice must be
postmarked on or before June 1, 1999. The notice of intention to
appear, which will be available for inspection and copying at the OSHA
Docket Office (Room N2625), telephone (202) 693-2350, must contain the
following information:
1. The name, address, and telephone number of each person to
appear;
2. The capacity in which the person will appear;
3. The approximate amount of time required for the presentation;
4. The issues that will be addressed;
5. A brief statement of the position that will be taken with
respect to each issue; and,
6. Whether the party intends to submit documentary evidence and, if
so, a brief summary of it.
Mail the notice of intention to appear to: Docket Office, Docket S-
042, U.S. Department of Labor, 200 Constitution Avenue NW, Washington,
DC 20210; telephone (202) 693-2350.
A notice of intention to appear also may be transmitted by
facsimile to (202) 693-1648 (Attention: Docket S-042), by June 1, 1999
provided that the original and 3 copies are sent to the same address
and postmarked no more than 3 days later.
Filing of Testimony and Evidence Before the Hearing
Any party requesting more than 10 minutes for a presentation at the
hearing, or who will submit documentary evidence, must provide in
quadruplicate, the complete text of the testimony, including any
documentary evidence to be presented at the hearing. One copy must not
be stapled or bound and must be suitable for copying. These materials
must be provided to the Docket Office at the address above and be
postmarked no later than June 14, 1999.
Each such submission will be reviewed in light of the amount of
time requested in the notice of intention to appear. If the information
contained in the submission does not justify the amount of time
requested, the Agency will allocate a more appropriate amount of time
and notify the participant of that fact prior to the informal public
hearing.
Any party who has not substantially complied with this requirement
may be limited to a 10 minute presentation, and may be requested to
return for questioning at a later time.
Any party who has not filed a notice of intention to appear may be
allowed to testify for no more than 10 minutes as time permits, at the
discretion of the Administrative Law Judge, but will not be allowed to
question witnesses.
Notices of intention to appear, testimony, and evidence will be
available for copying at the Docket Office at the address noted above.
Conduct and Nature of the Hearing
The hearing will commence at 9:30 a.m. on June 22, 1999. At that
time, any procedural matters pertaining to the proceeding will be
resolved.
The nature of an informal rulemaking hearing is established in the
legislative history of section 6 of the Occupational Safety and Health
Act and is reflected in OSHA's rules of procedure for hearings (29 CFR
1911.15(a)). Although the presiding officer is an Administrative Law
Judge (ALJ), and limited questioning by persons who have filed notices
of intention to appear is allowed on crucial issues, the proceeding is
informal and legislative in type. OSHA hearings provide interested
persons with an opportunity to make effective oral presentations,
without procedural restraints that unnecessarily impede or protract the
rulemaking process.
Additionally, the hearing is primarily for information gathering
and clarification. It is an informal administrative proceeding, rather
than an adjudication. The technical rules of evidence, for example, do
not apply. The regulations that govern OSHA hearings, combined with the
pre-hearing guidelines that the ALJ will issue for this hearing, will
ensure fairness and due process and also facilitate the development of
a clear, accurate, and complete record. Questions of relevance,
procedure, and participation generally will be decided in favor of the
most effective development of the record.
The hearing will be conducted in accordance with 29 CFR part 1911.
It should be noted that Sec. 1911.4 specifies that the Assistant
Secretary may, upon reasonable notice, issue alternative procedures to
expedite proceedings or for other good cause.
The hearing will be presided over by an Administrative Law Judge
who makes no decision or recommendation on the merits of OSHA's
proposal. The responsibility of the Administrative Law Judge is to
ensure that the hearing proceeds at a reasonable pace and in an orderly
manner. The Administrative Law Judge, therefore, will have all of the
powers necessary and appropriate to conduct a full and fair informal
hearing as provided in 29 CFR part 1911, including the powers:
1. To regulate the course of the proceedings;
2. To dispose of procedural requests, objections, and comparable
matters;
3. To confine the presentations to the matters pertinent to the
issues raised;
4. To regulate the conduct of those present at the hearing by
appropriate means;
5. At the Judge's discretion, to question and permit the
questioning of any witness and to limit the time for questioning; and,
6. At the Judge's discretion, to keep the record open for a
reasonable, stated time (known as the post-hearing comment period) to
receive written information and additional data, views, and arguments
from any person who has participated in the oral proceedings.
OSHA recognizes that there may be interested persons who, through
their knowledge of safety or their experience in the subject matter of
this proceeding, would wish to endorse or support certain provisions in
the proposed standard. OSHA welcomes such supportive comments in order
that the record of this rulemaking will present a balanced picture of
the public response on the issues involved.
VIII. State-Plan States
The 25 States and Territories with their own OSHA-approved
occupational safety and health plans must revise their existing
standards within six months of the publication date of the final
standard or show OSHA why there is no need for action, e.g., because an
existing State standard covering this area is already "at least as
effective" as the revised Federal standard. These States are: Alaska,
Arizona, California, Connecticut (State and local government employees
only), Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota,
Nevada, New Mexico, New York (State and local government employees
only), North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee,
Utah, Vermont, Virginia, Virgin Islands, Washington, and Wyoming.
IX. OSHA's Supplementary Statement of Reasons for Its
Interpretation of 29 CFR 1910.132(a)
This supplementary statement explains OSHA's interpretation that
the general protective equipment standard, 29 CFR 1910.132(a), requires
employers to provide protective equipment, including personal
protective equipment, at no cost to employees, except for equipment
that is personal in nature and normally used away from the worksite.
(OSHA uses the abbreviation PPE to cover both protective equipment and
personal protective equipment.) OSHA initially published this
interpretation in an October 1994 memorandum to the field. In October
1997, the Occupational Safety and Health Review Commission decided that
the Secretary had not adequately explained the basis for her
interpretation, in light of a perceived conflict between the 1994
memorandum and interpretive statements made by OSHA officials in
letters issued between 1974 and 1994. OSHA is including the following
supplementary statement in this Notice of Proposed Rulemaking to set
forth in detail the basis for its position on this important issue.
A. Background
OSHA's general protective equipment standard, 29 CFR 1910.132
states, in relevant part, as follows:
Section 1910.132 General Requirements
(a) Application. Protective equipment, including personal
protective equipment for eyes, face, head, and extremities,
protective clothing, respiratory devices, and protective shields and
barriers, shall be provided, used, and maintained in a sanitary and
reliable condition wherever it is necessary by reason of hazards of
processes or environment, chemical hazards, or mechanical irritants
encountered in a manner capable of causing injury or impairment in
the function of any part of the body through absorption, inhalation
or physical contact.
(b) Employee-owned equipment. Where employees provide their own
protective equipment, the employer shall be responsible to assure
its adequacy, including proper maintenance, and sanitation of such
equipment.
On October 18, 1994, Deputy Assistant Secretary James Stanley
issued a memorandum to OSHA's regional administrators and heads of
directorates announcing a uniform agency policy on employers'
responsibility to pay for personal protective equipment under section
1910.132 and other standards requiring employers to "provide" such
equipment. The interpretation outlined in the Deputy Assistant
Secretary's memorandum requires employers to pay for all personal
protective equipment that is necessary for the employee to do his or
her job safely and in compliance with OSHA standards, except for
equipment that is personal in nature and normally used away from the
worksite such as steel-toe safety shoes. OSHA subsequently issued a
compliance directive, STD 1-6.6, incorporating this interpretation and
stating that violations of the policy would be cited.
In March 1996, OSHA issued a citation alleging that the Union Tank
Car Company violated 29 CFR 1910.132(a) by requiring employees to pay
for metatarsal safety shoes and welding gloves. Upon review, the
Occupational Safety and Health Review Commission issued a decision
vacating the citation. Secretary of Labor v. Union Tank Car Co., 18
O.S.H. Cas. (BNA) 1067 (Rev. Comm. 1997). In Union Tank, the Commission
stated that it had addressed the meaning of 29 CFR 1910.132 in The Budd
Company, 1 O.S.H. Cas. (BNA) 1548 (Rev. Comm. 1974), and had concluded
that the standard could not be interpreted to require employers to pay
for personal protective equipment. 18 O.S.H. Cas. (BNA) at 1068. The
Commission also noted that OSHA had issued at least five letters of
interpretation between 1974 and 1994 stating that the standard does not
specify who pays the cost of personal protective equipment. Id.
Characterizing the Agency's approach in these letters as acquiescence
in Budd, the Commission criticized OSHA for failing to provide an
adequate explanation for the apparently new interpretation announced in
the Stanley memorandum. The Commission noted that an agency changing
its course "must supply a reasoned analysis indicating that prior
policies and standards were being deliberately changed, not casually
ignored." Id. at 1069.
The Secretary believes that requiring employers to pay for personal
protective equipment that must be worn because of hazards in the
workplace is central to the effective administration of the Act. While
the Secretary believes that the interpretation announced in STD 1-6.6
is faithful both to the standards' plain language and to the
legislative intent, she is mindful of the Commission's concern that the
Agency has not provided an adequate explanation of the basis for this
interpretation. To address these concerns, this supplementary statement
reviews the history of prior interpretive statements and explains in
detail the linguistic and policy bases for requiring employers to pay
for personal protective equipment.
The following discussion is organized into two sections. Section
II, below, explains the bases for the Secretary's interpretation,
including the meaning of the word "provide" in the standard, the
legislative intent that employers bear the costs of safety and health
requirements, and the reasons why requiring employers to pay for
personal protective equipment contributes in practical ways to
increased safety protection for employees. Section III addresses the
decisions issued by the Commission and the Third Circuit in Budd. The
section examines in detail the separate rationales offered by the
Commissioners in the case, and explains why those rationales (none of
which commanded a Commission majority) are not Commission precedent,
nor are they consistent with subsequent Federal and Commission case
law. The section also addresses OSHA's prior statements regarding
personal protective equipment and demonstrates that OSHA did not have a
settled national policy on the standard's interpretation until 1994.
B. The Language and Purpose of the Standard, as Well as the Policy of
the OSH Act, Support the Secretary's Construction
The Secretary's interpretation of section 1910.132 is that the
employer's duty to "provide" personal protective equipment when
hazards dictate its use includes the obligation to pay for the
equipment. See Borton, Inc. v. OSHRC, 734 F.2d 508, 510 (10th Cir.
1984) (usual meaning of provide is "to furnish, supply, or make
available"). Accord, Usery v. Kennecott Copper Corp., 577 F.2d 1113,
1119 (10th Cir. 1978); Secretary v. Baker Concrete Constr. Co., 17
O.S.H. Cas. (BNA) 1236, 1239. These definitions strongly imply that
what is to be "provided" is to be given without cost to the
recipient.
The Review Commission itself has found that "provide" includes
the requirement to "pay for" under a standard closely analogous to
section 1910.132. In Secretary of Labor v. Erie Coke Corp., 15 O.S.H.
Cas. (BNA) 1561 (Rev. Comm. 1992), the Commission addressed the meaning
of 29 CFR 1910.1029(h)(1), which requires employers to "provide and
assure the use of" appropriate personal protective equipment for coke
oven workers. The Commission held that the plain meaning of
"provide," as well as other factors, supported the Secretary's
interpretation that flame resistant gloves must be furnished at no
charge. Id. at 1563 (the dictionary definitions "suggest . . . that
"provide" encompasses more that merely making items available").
Courts have relied upon this meaning in holding that safety
equipment and other items to be "provided" under analogous state and
Federal regulations must be furnished at no charge. In Bendix Forest
Prods. Corp. v. Division of Occupational Safety and Health, 600 P.2d
1339 (Cal. 1979) (en banc), the California Supreme Court held that Cal/
OSHA standards requiring employers to "furnish" and "provide"
safety devices precluded employers from charging employees for personal
protective equipment. The Court found, inter alia, that "a reasonable
and ordinary interpretation of "furnish" . . . concomitantly requires
the employer to pay for the safety equipment." Id. at
1344.11 See also Nelson v. Thornburg, 567 F. Supp. 369, 379-
82 (E.D. Pa. 1983), aff'd, 732 F.2d 146 (3d Cir), cert. denied, 469
U.S. 1188 (1985) (HHS regulations defining "reasonable accommodation"
under section 504 of the Rehabilitation Act to include "the provision
of readers" required employer to pay for readers to accommodate
qualified blind employees, unless such costs would pose an undue
burden).
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\11\ The words "provide" and "furnish" are often used
interchangeably. Webster's Third New Int'l Dictionary, id.
---------------------------------------------------------------------------
The Secretary's construction that employers are responsible for the
cost of personal protective equipment finds further support in the
language and purpose of the OSH Act. A central principle embodied in
the Act is that the fundamental duty of ensuring safe working
conditions is to be borne by employers, not employees. Early in the
Act's development, Federal appellate courts established that section
5(a), 29 U.S.C. 654(a), allocates to employers sole legal
responsibility for achieving compliance with safety and health
standards.12 Atlantic & Gulf Stevedores v. OSHRC, 534 F.2d
541, 553 (3d Cir. 1976); United Steelworkers of America v. Marshall,
647 F.2d 1189, 1231 (D.C. Cir. 1980). These courts concluded that
although section 5(b) nominally refers to
[[Page 15434]]
duties of employees as well as employers, the Act's substantive
requirements and enforcement scheme 13 are directed only at
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employers. Accordingly, the statute's reference to employee duties is:
\12\ Section 5(a)(2) of the Act provides, in relevant part, that
"[each employer shall comply with occupational safety and health
standards . . . issued pursuant to this Act." 29 U.S.C. 654(a)(2).
\13\ Sections 9(a) and 10(a) provide for the issuance of
citations and notifications of proposed penalties only to employers.
29 U.S.C. 658(a), 659(a). Similarly, section 10(a) refers only to
employer contests of citations and proposed penalties. While
employees may intervene in proceedings initiated by the employer,
the only independent right granted employees is to contest the
reasonableness of any time period fixed by the Secretary for
abatement of a violation. 29 U.S.C. 659(c). Section 17 provides for
the assessment of civil monetary penalties only against employers.
29 U.S.C. 666. See Atlantic & Gulf Stevedores, 534 F.2d at 553.
---------------------------------------------------------------------------
essentially an exhortation to employees to cooperate in the
standards and is not meant to diminish in any way the employer's
compliance responsibilities or his responsibility to assure
compliance by his own employees. Final responsibility for compliance
with the requirements of this Act remains with the employer.
United Steelworkers, 647 F.2d at 1231. See also Atlantic & Gulf
Stevedores, 534 F.2d at 553 (the Act's reference to employee duties in
section 5(b) is "essentially devoid of content").
The legislative history demonstrates that employers' compliance
responsibilities include the obligation to pay for devices and work
practices necessary to render workplaces safe. The Supreme Court found
that the legislative history:
shows that Congress understood that the Act would create substantial
costs for employers, yet intended to impose such costs when
necessary to create a safe and healthful working environment.
Congress viewed the costs of health and safety as a cost of doing
business. Senator Yarborough, a cosponsor of the [Act], stated: "We
know the costs would be put into consumer goods but that is the
price we should pay for the 80 million workers in America . . .
Senator Eagleton commented that "[t]he costs that will be incurred
by employers in meeting the standards of health and safety to be
established under this bill are, in my view, reasonable and
necessary costs of doing business." Other Members of Congress
voiced similar views.
American Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 519-521
(1980) (ATMI) (internal citations omitted, original emphasis). See also
Forging Indus. Ass'n v. Secretary of Labor, 773 F.2d 1436, 1451 (4th
Cir. 1985) (en banc) (in view of Supreme Court's "clear statement" in
ATMI that Congress intended employers to bear the costs of safety and
health, OSHA may logically require employers to bear the costs of
hearing protectors under the hearing conservation standard).
The D.C. Circuit also found persuasive indications of Congress's
intent to have employers bear general financial responsibility under
the Act. It noted that the report of the Senate subcommittee from which
the statute emerged stressed the need to place the cost of standards on
employers:
many employers--particularly smaller ones--simply cannot make the
necessary investment in health and safety and survive competitively,
unless all are compelled to do so. The competitive disadvantage of
the more conscientious employer is especially evident where there is
a long period between exposure to a hazard and manifestation of an
illness. In such instances a particular employer has no economic
incentive to invest in current precautions, not even in the
reduction of workmen's compensation costs, because he will seldom
have to pay for the consequences of his own neglect.
United Steelworkers, 647 F.2d at 1231 (quoting S. Rep. No. 91-1282,
91st Cong. 2d Sess. 4 (1970), reprinted in, Senate Comm. on Labor and
Public Welfare, 92nd Cong. 1st Sess., Legislative History of the
Occupational Safety and Health Act of 1970, at 144). See also
Legislative History at 444, 1150.
Conspicuously absent from the legislative history is any indication
from Congress that compliance costs should be borne by employees.
Indeed, it is reasonably implicit in the statutory scheme that Congress
sought to maintain the standard of living of working men and women and
did not contemplate that employees' pay and benefits would be
sacrificed to achieve safe and healthful workplaces. For example, the
Senate report notes that employers are bound by the "general and
common duty to bring no adverse effects to the life and health of their
employees throughout the course of their employment. Employers have
primary control of the work environment and should ensure that it is
safe and healthful." Legislative History at 149.
In view of the OSH Act's structure and history, there is no serious
dispute that employers must pay for engineering controls necessary to
reduce exposures to toxic substances. See, e.g. Budd, 1 O.S.H. Cas.
(BNA) at 1550, n.5. In the Secretary's view, there is no principled
distinction between engineering controls, which employers undoubtedly
must pay for, and the personal protective equipment for which payment
is required under STD 1-6.6.14 OSHA addressed this issue in
rulemaking on the Cancer Policy in 1980 and found no distinction, for
payment purposes, between engineering controls and personal protective
equipment necessary to protect employees from exposure to carcinogenic
substances. OSHA stated:
\14\ OSHA recognizes that safety-toe shoes do possess special
characteristics which distinguish them from other types of personal
protective equipment for cost-allocation purposes. See, e.g., Budd,
1 O.S.H. Cas. (BNA) at 1550 (distinguishing safety shoes, which are
uniquely personal in nature and used away from work, from capital
equipment, which employers ordinarily pay for).
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[T]he requirement that employers pay for protective equipment is
a logical corollary of the accepted proposition that the employer
must pay for the institution of required engineering and work
practice controls. To the extent that protective equipment, like
engineering controls, is intended also to protect against . . .
contamination, employers logically must pick up the expense. There
is no rational basis for distinguishing . . . personal protective
equipment [from engineering controls] The goal, in each case, is
employee protection; consequently, the responsibility of paying for
the protection should, in each case rest on the employer.
45 FR 5261 (January 22, 1980).15
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\15\ OSHA's approach to payment for PPE under health and safety
standards is discussed in detail above.
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OSHA has further determined, in rulemakings addressing specific
hazards, that placing payment responsibility on the employer best
carries out the Act's purpose of fostering employee safety. 29 U.S.C.
651(b). Requiring employers to pay for personal protective equipment
contributes to increased health and safety protection in several
practical ways. The employer is most knowledgeable about hazards
existing in the workplace and is therefore best able to select and
maintain appropriate protective equipment. Requiring employers to
purchase personal protective equipment ensures that they retain control
over the selection, issuance, maintenance and use of the devices. See
43 FR 19619 (May 5, 1978) (preamble to final rule on inorganic
arsenic); 46 FR 4153 (January 16, 1981) (hearing conservation
preamble). Shifting the financial burden to employees, on the other
hand, "risks losing the necessary control over the organized and
consistent selection, issuance, maintenance and use of such
equipment." 46 FR 4153.
Employer payment for protective equipment also contributes to
improved health and safety by removing economic disincentives to
cooperation by employees. In promulgating requirements for medical
surveillance and medical removal protection (MRP) for some health
standards, OSHA found that employees would be reluctant voluntarily to
cooperate in such programs if they believed that they would suffer a
loss of income as a result. See, e.g., 43 FR 54442-54449 (November 21,
1978) (attachments to lead preamble). See also United Steelworkers of
America, 647 F.2d at 1230-12377 (finding lead standard's MRP provisions
to be authorized under the statute and reasonable). OSHA has also required
employers to provide medical examinations without cost to the employee in
part to ensure employee cooperation in taking the exams. 43 FR 19624 (May 5,
1978) (preamble to inorganic arsenic standard). See also Secretary of
Labor v. Phelps Dodge Corp., 11 O.S.H. Cas. (BNA) 1441, 1443 (Rev.
Comm. 1983) (noting ALJ's finding that when employees were required to
provide their own transportation to and from the hospital and to
sacrifice their personal time to take medical examinations for arsenic
exposure, 42% of them failed to participate in the medical surveillance
program).
OSHA considers that this evidence, which shows that employees make
decisions that risk their health and safety to avoid suffering economic
loss is relevant to the issue of payment for personal protective
equipment. It is certainly reasonable to believe that employees who are
furnished personal protective equipment at no charge are more strongly
motivated to wear the devices, and to replace them when they wear out
or are damaged, than are employees who must purchase these devices. In
the Union Tank case, the employee representative presented an affidavit
that some employees taped or wrapped wire around their damaged
metatarsal safety boots in order to avoid having to pay up to $130 per
pair to replace them. Similarly, in Ormet Primary Aluminum Corp., OSHRC
No. 96-0470, an employee testified that he continued to wear safety
boots though the protective steel toes were exposed and posed an
electrocution hazard because he could not afford a new pair. The
employee also testified that some workers put a cement-like substance
over the steel toes of their boots when the leather covering wore away,
but that this practice was hazardous because the substance was
flammable. Thus, the policy outlined in STD 1-6.6 is not only
consistent with the plain meaning of the standard's text, it is
supported by the statutory context and by significant practical safety
considerations.
C. The Interpretation of Sec. 1910.132 Announced in STD 1-6.6 is
Supported by Better Reasoned Authority and Reflected OSHA's Initial
Determination on an Appropriate National Policy Regarding Payment for
Personal Protective Equipment Under the Standard
1. Introduction
This section addresses the grounds relied upon by the Commission in
Union Tank for rejecting the Secretary's interpretation that section
1910.132(a) requires employers to pay for most types of personal
protective equipment. The Commission first stated that in Budd it had
determined that "provide" in section 1910.132(a) could not be
interpreted to mean "pay for." 18 O.S.H. Cas. (BNA) at 1068. The
Commission then stated that OSHA had, for twenty years, acquiesced in
the interpretation of the standard announced in Budd. Id. at 1069. The
Commission held that the Secretary's "new interpretation" of section
1910.132(a) announced in 1994 was unreasonable because it represented a
change in policy without adequate explanation. Id. This holding was
based on five letters of interpretation issued from 1976 to 1993
stating that the standard does not specify who pays for personal
protective equipment.
The following sections address the Budd decisions, as well as other
relevant precedent, and explain in detail why Budd did not announce an
authoritative interpretation of section 1910.132(a). The sections also
address the agency's prior approaches to the cost allocation issue.
During the period from 1974 through October 1994, OSHA made a
variety of statements on the question of employer payment for personal
protective equipment. OSHA concedes that the statements of some agency
officials during this period are inconsistent with the interpretation
outlined in STD 1-6.6. However, these letters do not amount to an
authoritative agency interpretation that employers are not required to
pay for personal protective equipment. During the period from 1978
through 1994, OSHA promulgated health standards, pursuant to section
6(b) of the OSH Act, requiring employers to pay for personal protective
equipment. In these standards, OSHA interpreted the Act to require
employers to pay for personal protective equipment to the same extent
that they would be required to pay for engineering controls.
Furthermore, during the relevant time period some OSHA officials
interpreted section 1910.132 to require employers to pay for personal
protective equipment, other than safety shoes, and one court of appeals
noted that the Act's legislative history supported this interpretation.
Considered as a whole, OSHA's actions during the period from 1974-1994
cannot reasonably be viewed as reflecting an official agency
interpretation contrary to STD 1-6.6.
2. The Commission's Budd Decision
The Commission's decision in Budd arose from a citation alleging
that the employer violated 29 CFR 1910.132(a) by failing to provide
safety-toe shoes to its employees. Prior to the hearing, the employer
moved to withdraw its notice of contest on the understanding that its
obligation to provide safety shoes did not include the requirement to
pay for them. The Secretary agreed that the employer was not required
to pay for the shoes because of their special characteristic, as noted
below; however, the union representing the employees objected on the
ground that the standard required employer payment. The issue presented
to the Commission was whether the employer's motion should be granted.
The Secretary stressed the special characteristics of safety shoes,
including their use away from work, as the rationale for not requiring
employers to pay for this specific type of protective equipment. In her
brief in Budd, the Secretary stated that:
by tradition, in this country shoes are considered unique items of a
personal nature. Safety shoes are purchased by size, are available
in a variety of styles, and are frequently worn off the job, both
for formal and casual wear. Furthermore, it is neither feasible for
a different employee to wear the shoes each day nor feasible that
upon resigning from the position an employee will leave the shoes
behind to be worn by another individual.
See Brief of the Secretary, served January 10, 1973, at 8. However, the
Secretary emphasized that an interpretation requiring employers
generally to provide personal protective equipment free of charge would
be consistent with the statutory scheme. She noted that such an
interpretation could improve safety and health by giving employees
greater incentive to use personal protective equipment. Id. at 9. She
also noted that the Act's legislative history demonstrated Congress's
intent to place the costs of achieving safe and healthful workplaces
upon employers. Id. at 10. The Secretary concluded that "[p]ersonal
protective equipment cannot be segregated from equipment necessary to
provide proper working conditions and therefore the purchase of such
equipment by the employer was contemplated by the Act in cases where a
standard might require it." Id. at 10-11.
The Commission held that the employer's motion should be granted
because section 1910.132(a) could not be interpreted to require the
employer to pay for safety shoes. However, the Commission did not
announce a majority rationale for this conclusion. Commissioners Van
Namee and Cleary authored separate opinions explaining their different
reasoning, while Commissioner Moran concurred in the determination on
the motion without stating a rationale.16
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\16\ Commissioner Moran joined the majority on the question of
the disposition of the employer's motion to withdraw its notice of
contest relating to 29 CFR 1910.132. He dissented from the
Commission's decision on another cited violation, not relevant here.
---------------------------------------------------------------------------
Commissioner Van Namee reasoned that it would be anomalous to read
section 1910.132(a) to require employers to provide or pay for personal
protective equipment in light of the wording of section 1910.132(b),
which contemplates the use of employee-provided equipment. 1 O.S.H.
Cas. (BNA) at 1549, 1550. In the Commissioner's view, such a
construction would render paragraph (b) meaningless. Id. at 1550. Thus,
he interpreted section 1910.132(a) to mean that "where personal
equipment is necessary, the employer shall ensure that it is used. If
[the employer] provides such equipment, he is responsible for ensuring
that it is 'provided, used and maintained in a sanitary and reliable
condition.' " Id.
Commissioner Van Namee found support for his interpretation of
section 1910.132(a) in the OSH Act's purpose of achieving safe
workplaces, a purpose he believed to be unrelated to the question of
payment. He stated that "[p]rescription of cost allocations is not
essential to the effectuation of the Act's objectives. It is irrelevant
for purposes of the Act who provides and pays for the equipment. Either
employer or employee provision is consistent with the purpose of the
Act." Id. Commissioner Van Namee also noted that the steel-toed safety
shoes at issue were "uniquely personal" and could be used by
employees away from the workplace. Id., n. 5.
Commissioner Cleary concurred in the determination on a different
basis. He concluded that section 1910.132(a) does impose a duty upon an
employer to provide directly or indirectly the required personal
protective equipment. Id. at 1552. He found that this reading was not
inconsistent with the text of paragraph (b), because paragraph (b)
imposes no duty upon employees to furnish the equipment. "Rather,"
Commissioner Cleary wrote, "what paragraph (b) seems to recognize is
that equipment which is owned by employees may sometimes be used by the
employees themselves . . . . When this occurs, the paragraph
establishes a duty upon the employer to assure its adequacy. Under its
express terms, paragraph (b) does not require employees to provide the
equipment in the first instance." Id.
Commissioner Cleary found that the OSH Act "clearly contemplates
that an employer will generally assume the costs of complying with its
terms." Id. However, he concluded that the Commission lacked
jurisdiction to provide relief as to costs in the Budd case because
section 1910.132 did not, by its express terms, require employers to
assume the costs of personal protective equipment. Id. In the
Commissioner's view, the Commission lacked authority, in a proceeding
to enforce a citation, to interpret the standard to require payment.
Id. At the same time, the Commissioner noted that other relief might be
available. He suggested that an employer's policy of requiring
employees to pay for personal protective equipment could, in some
cases, constitute a violation of section 11(c) of the OSH Act, which is
enforced through actions in Federal district court. Id. at 1553.
3. The Court of Appeals' Affirmance
The Commission's decision was affirmed on appeal in Budd v. OSHRC,
513 F.2d 201 (3d Cir. 1975). The court found that the interpretation
reached by the Commission and the Secretary that 29 CFR 1910.132 does
not require employers to pay for safety-toe footwear was reasonable.
513 F.2d at 205. The court expressly reserved judgment on whether
employers could be required to pay for other types of protective
equipment. Id.
As support for affirmance of the Commission's order, the court
found the joint position not inconsistent with the statutory scheme.
The panel noted that Congress did not expressly require that the
employer pay for protective equipment, and, in apparent agreement with
Commissioner Van Namee's view, observed that "[t]his Act, unlike such
legislation as the Fair Labor Standards Act, is not concerned with
wages and hours, but rather with reducing the incidence of job-related
injuries." Id. at 206. The court also found the joint position
reasonable in light of the standard's language. It noted that the verbs
"provided, used and maintained" in section 1910.132(a) are phrased in
the passive voice without specifying whether the employer or the
employee is to perform these functions, and that section 1910.132(b)
contemplates that employees will provide some protective equipment. Id.
In sum, in Budd, the Secretary, the Commission and the Third
Circuit agreed that 29 CFR 1910.132 does not require employers to pay
for safety-toe shoes. However, neither the Commission decision nor the
court decision is an authoritative interpretation of the standard as it
applies to other types of personal protective equipment. In Union Tank,
the Commission referred to Commissioner Van Namee's rationale as the
Commission's holding on the meaning of section 1910.132(a). 18 O.S.H.
Cas. (BNA) at 1068 (stating that, in Budd, "the Commission held that
to read subpart (a) as requiring the employer to provide protective
equipment would negate subpart (b), which contemplates the use of
employee provided equipment"). This characterization is substantially
flawed because no one opinion in Budd can be said to represent the
Commission's official view. See Atlantic Gulf & Stevedores v. OSHRC,
534 F.2d at 546 (where Commission order affirms citation but each
Commissioner files a separate opinion announcing a different rationale,
no one opinion represents Commission consensus).
In sum, four different approaches to the payment issue emerged from
the Budd litigation: (1) Employers should not be required to pay for
personal protective equipment that is uniquely personal in nature and
usable off the worksite, but may be required to pay for other types of
PPE (the Secretary's position); (2) the OSH Act is indifferent to the
question of who pays for personal protective equipment (the view of
Commissioner Van Namee, supported by the court of appeals at least for
safety shoes); (3) section 1910.132(a) cannot be interpreted to require
employers to pay for personal protective equipment in light of the
language of section 1910.132(b) (the view of Commissioner Van Namee);
and (4) section 1910.132(a) cannot be interpreted to require employers
to pay because it does not say so expressly (Commissioner Cleary's
view).
4. OSHA's Interpretive Statements
From 1974 through 1994, OSHA embraced a variety of approaches to
the issue of employer payment for personal protective equipment. In its
most formal statements on the issue, made in the context of rulemaking
proceedings on a broad spectrum of health hazards, OSHA determined that
the Act generally contemplates employer payment of the costs of safety and
health, including personal protective equipment. OSHA's determinations on
employers' responsibility to pay for personal protective equipment, made
on the record in rulemakings for specific standards, are discussed infra.
Similarly, OSHA issued an Interpretive Instruction stating that under
29 CFR 1910.1029 (h)(1), personal protective equipment for coke oven workers
must be furnished by employers at no charge. See Erie Coke Corp., 15 O.S.H.
Cas. (BNA) at 1563 (citing STD 1-6.4 (March 12, 1979)).
Prior to 1994, OSHA did not publish enforcement guidance on section
1910.132 in the Field Operations Manual or by interpretive memorandum.
In some letters responding to requests for information, however, agency
officials suggested that Budd foreclosed an interpretation of section
1910.132, or of OSHA personal protective equipment standards generally,
requiring employers to pay for personal protective equipment. In other
letters, OSHA noted that the standards do not specifically allocate the
cost of such equipment to employers, and suggested that the issue be
resolved through collective bargaining, where appropriate. Typical of
this viewpoint is the September 2, 1976 letter to Adlai E. Stevenson
quoted by the Commission in Union Tank.
On the other hand, OSHA continued at times to enforce the standard
to require employers to pay for personal protective equipment. In
September 1990, OSHA issued a citation to a meatpacking firm alleging
that it violated section 1910.132(a) by charging its employees for
repair or replacement of steel mesh gloves and plastic wrist bands used
for protection against knife cuts.17 A July 17, 1990 agency
memorandum stated that although section 1910.132(a) does not
specifically allocate the costs of personal protective equipment to
employers, "it is our position that the employer is obligated to pay
for PPE which is not worn off the worksite. This includes welding
gloves, but not safety shoes . . ." 18 A May 20, 1994
agency letter responding to a request for information on OSHA's
enforcement policy stated that the interpretation outlined in the
agency's July 1990 memorandum "is still in effect."
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\17\ The citation was not contested, and thus became a final
order of the Commission by operation of law. 29 U.S.C. 659(a).
\18\ OSHA's issuance of the citation under section 1910.132(a)
was in step with the agency's approach under other standards that do
not expressly require employers to pay for personal protective
equipment. In 1979, OSHA issued an interpretive Instruction
clarifying that 29 CFR 1910.1029(h)(1), which states that the
employer "shall provide" protective clothing and equipment,
including flame resistant gloves, for coke oven workers, requires
that this equipment be furnished at no cost to employees. OSHA
Instruction STD 1-6.4 (March 12, 1979).
---------------------------------------------------------------------------
Deputy Assistant Secretary Stanley's memorandum of October 1994 and
the subsequent compliance directive STD 1-6.6 were intended to
harmonize the different approaches to the question of employer
responsibility for the costs of personal protective equipment. In
requiring employers to pay for all except uniquely personal equipment,
used off the worksite, the directive did not break new ground. Rather,
the interpretation enunciated in the directive closely paralleled the
interpretation in the July 1990 memorandum and the position taken in
the Secretary's brief in Budd. This policy also reflected OSHA's formal
position in rulemaking proceedings under section 6(b) that personal
protective equipment, like engineering controls, must be paid for by
employers unless special circumstances make it appropriate for
employees to provide their own equipment. In stating that the matter of
payment for items such as safety shoes and prescription eyewear may be
left to negotiation, the Stanley memorandum recognizes the unfairness
of requiring employers to pay for items of equipment that are normally
used away from work, are purchased to fit particular employees, and are
not, as a practical matter, reusable by other employees.
5. Why OSHA rejects the positions of Commissioners Van Namee and Cleary
on the interpretation of section 1910.132 as it applies to PPE other
than safety-toe shoes and prescription safety eyewear
The preceding discussion establishes two points of central
importance in addressing the Commission's analysis in Union Tank.
First, the Commission did not reach a consensus in Budd on the
interpretation to be given section 1910.132(a) regarding payment for
personal protective equipment other than safety shoes. The
interpretation relied upon in Union Tank as the "holding" in Budd is,
in fact, no more than the view of a single Commissioner. Second, the
interpretation announced in STD 1-6.6 was not a wholly new policy, nor
was it a change in OSHA's national policy since 1994. The statements in
the agency letters relied upon by the Commission reflected the views of
some officials that are at odds with the agency's positions taken (a)
in rulemaking proceedings under the Act; (b) in its brief to the
Commission in Budd; and (c) in a 1990 contested enforcement action
before the Commission. Viewed in this context, the interpretation
announced in the Deputy Assistant Secretary's memorandum, and formally
published in STD 1-6.6, is OSHA's national policy, not a change in such
policy.
The following sections examine the interpretive views expressed by
the individual Commissioners in Budd. In light of the case law and
other developments since Budd, the Secretary believes that the position
she outlined in her Commission brief--that employers should not be
required to pay for equipment that is uniquely personal in nature and
usable off of the job--remains the only viable basis for the
disposition of that case. To the extent that the positions outlined in
the concurring opinions support an interpretation that section 1910.132
does not require employers to pay for any type of personal protective
equipment, they are inconsistent with subsequent Federal court and
Commission case law.
a. The Act is not indifferent to cost-allocation. Commissioner Van
Namee's position that the OSH Act is indifferent to the question of who
pays for equipment mandated by OSHA standards has been rejected by
subsequent court and Commission decisions. That position ignores the
extensive legislative history of the Act, discussed above, indicating
Congress's intent to place fiscal responsibility for the safety of
employees on industry, which can pass the costs to consumers. Based on
this history, OSHA has promulgated numerous standards under section
6(b) of the Act, mandating that employers pay for protective devices
and other requirements necessary for safety and health.
The lead standard (29 CFR 1910.1025), promulgated in 1978, clearly
stated the principle that employers should bear the costs of
requirements necessary to achievement of healthful working conditions.
The standard requires that an employer who removes employees from their
jobs because of high blood-lead levels must maintain the workers'
earnings and seniority rights during removal for up to eighteen months.
29 CFR 1910.1025(k). The standard also requires employers to provide,
at no charge to employees, respirators and protective clothing. 29 CFR
1910.1025 (f), (g). In the preamble to the Medical Removal Protection
(MRP) provision, OSHA explained its determination that compliance costs
were properly allocable to employers under the Act.
OSHA has determined that the foregoing costs should be borne by
employers in the first instance . . . MRP is meant to place those
costs of worker protection directly on the industry at large rather
than on the shoulders of individual workers unfortunate enough to be at
risk of material impairment to health due to occupational exposure to lead.
The costs of protecting worker health are appropriate costs of doing
business, thus employers should properly bear the economic impact of
temporary medical removals. The [OSH] Act . . . recognized that the
costs which consumers pay for goods should reflect all costs of
production, including costs associated with preventing . . .
occupational disease. Under the Act, employers have the primary
obligation to provide a safe and healthful work experience, [and]
thus should incur the costs necessary to satisfy this obligation.
(43 FR 54449/3).
Beginning in 1978, OSHA determined that the costs of personal
protective equipment necessary to guard employees against exposure to
toxic substances should be paid for by employers. The standard on
Inorganic Arsenic requires employers to pay for respirators, protective
clothing and protective equipment, including gloves, shoes, and face
shields or goggles. 29 CFR 1910.1018(j)(1). The preamble to the rule
states that:
the obligation is on the employer to provide protective equipment at
no cost to the employee. In this way the employer is in the best
position to provide the correct type of equipment and keep it in
repair. Also, as the employer has permitted exposures to exceed the
permissible exposure limits, the obligation properly rests on the
employer.
43 FR 19619 (May 5, 1978). OSHA applied the same reasoning in requiring
employers to pay for respirators when necessary to protect employees
from exposure to cotton dust. 43 FR 27387/2 (June 23, 1978) (preamble
to final rule on occupational exposure to cotton dust). The Cotton Dust
preamble notes that the language requiring employers to provide
respirators " 'at no cost to the employee' . . . makes explicit the
position which has long been implicit in all OSHA health standard
proceedings under section 6(b) of the Act" Id. OSHA expressed a
similar view in the preamble for the 1,2-Dibromo-3-chloropropane (DBCP)
standard. 43 FR 11523/3 (March 17, 1978).
In the following decades, OSHA has expanded its justification for
explicitly requiring employers to bear the costs of necessary
protective devices. In the preamble to the hearing conservation
standard, OSHA determined that employers should pay for hearing
protectors based in part on a commenter's statement that "where
personal protective equipment is necessary to afford [a safe and
healthful working] environment, it is . . . almost universally accepted
that its purchase is the responsibility of the employer." 46 FR 4153
(January 16, 1981). The preamble also noted that permitting an employer
to charge employees for hearing protectors could discourage the use of
such devices and thereby undermine the effectiveness of the employer's
hearing conservation programs. Id.
The formaldehyde standard, promulgated in 1987, expressly linked
the question of payment for personal protective equipment and the
employer's duty to "provide" such equipment under 29 CFR 1910.132.
The formaldehyde standard requires employers to comply with 29 CFR
1910.132 and 1910.133 and specifies that the appropriate protective
equipment is to be provided at no cost to the employee. 29 CFR
1910.148(h). The preamble to the formaldehyde standard stated that the
standard "reminds all employers of their obligation to comply with . .
. 29 CFR 1910.132 . . . and requires the employer to provide such
clothing or equipment at no cost to the employee." 52 FR 46269/1
(December 4, 1987).
By 1991, OSHA's policy was firmly established. In the bloodborne
pathogens standard, the Agency justified the requirement that employers
pay for various items of specialized equipment necessary to protect
health care workers from exposure to blood or other potentially
infectious materials. The preamble states that:
[i]t has been the Agency's longstanding policy to hold the employer
responsible for controlling exposure to hazards in his or her
workplace and to fulfill this responsibility at no cost to the
employee. Therefore, the financial burden for purchasing and
providing personal protective equipment rests upon the employer just
as it does for all other control measures (e.g., engineering
controls).
56 FR 64125/1 (December 6, 1991) (emphasis added).
This policy has been carried forward to the present. OSHA's
standards for methylenedianiline, 29 CFR 1910.1050(h)(2)(i), (i)(1);
cadmium, 29 CFR 1910.1027(g)(1), (i)(1); 1,3 butadiene, 29 CFR
1910.1051(h)(1), (i); and methylene chloride, 29 CFR 1910.1052(g)(1),
(h)(1), promulgated between 1992 and 1997, all require employers to pay
for respirators, protective clothing and personal protective equipment
when such devices are necessary. OSHA's new Respiratory Protection
standard, promulgated January 8, 1988, also requires employers to
provide respirators, as well as training and medical evaluations, at no
cost to the employees. 63 FR 1271 (January 8, 1988).
While OSHA has generally required employers to pay for all types of
personal protective equipment, it has recognized an exception to the
policy in certain circumstances. In the safety standard on logging
operations, promulgated shortly before issuance of the Deputy Assistant
Secretary's memorandum in October 1994, OSHA determined that logging
employers should pay for protective equipment for the head, eyes, face,
hands, and legs, but should not be required to pay for logging boots.
OSHA excepted logging boots from among the types of equipment that
employers must purchase for three reasons. First, the Agency found that
the logging industry is highly transient and that logging boots, unlike
other types of personal protective equipment, are not reusable.
Therefore, OSHA concluded, "employers would have to purchase non-
reusable logging boots costing $200 to $400 many times a year for
newly-hired employees, even though there is a significant likelihood
that these employees will remain in the job for only a short time." 59
FR 51684 (October 12, 1994).
OSHA also found that logging employees tend to move from one
establishment to another, taking their logging boots with them as tools
of the trade. OSHA noted that logging boots are readily portable, and,
unlike head and leg protection, are sized to fit a particular employee.
OSHA found that it was appropriate to allow employees to follow the
established custom of taking their boots with them from job to job
rather than requiring employers to provide logging boots. Id.
Finally, the Agency noted that there was evidence in the record
that employees use their logging boots away from work, for such
activities as hunting and cutting their own wood, and that there was
not comparable evidence that employees also use other types of
protective equipment off-site. Id. For all of these reasons, OSHA
decided not to require employers to purchase logging boots. However, it
found no basis to depart from its "long established policy" regarding
the costs of other items of required personal protective equipment. Id.
Federal appellate courts have upheld OSHA's statutory authority to
impose on employers the costs of requirements reasonably necessary for
safe and healthful workplaces. In United Steelworkers of America, the
D.C. Circuit upheld OSHA's authority to charge employers with the costs
of MRP, finding that "the scheme of the statute, manifest in both the
express language and the legislative history, appears to permit OSHA to
charge to employers the cost of any new means it devises to protect workers"
647 F.2d at 1231. The United Steelworkers court noted that the Third Circuit's
decision in Budd should be confined to its facts, stating "[t]he court [in Budd]
stressed the special character of protective devices which the employee would
wear off-the-job as well as on-the-job and made clear it was expressing no
opinion on the proper party to be charged for other devices and methods.
Moreover, the court there failed to address the relevant parts of the
legislative history." 647 F.2d at 1231-1232, n.66.
The Fourth Circuit upheld the hearing conservation standard's
allocation of the costs of hearing protectors to employers in Forging
Indus. Ass'n v. Secretary of Labor, 773 F.2d 1436, 1451 (4th Cir. 1985)
(en banc). The Forging Indus. court noted that in view of the Supreme
Court's finding in ATMI that Congress intended to impose compliance
costs on employers, "it is only logical that OSHA may require
employers to absorb such costs." 773 F.2d at 1451.
The Commission itself has squarely rejected the view that the Act
is indifferent to cost allocation in Erie Coke Corp., discussed supra,
at p.4. In Erie Coke, the commission upheld the reasonableness of the
Secretary's construction that the coke oven emissions standard at 29
CFR 1910.1029(h)(1)(ii) required employers to pay for flame resistant
gloves. In doing so, the Commission addressed the legislative history
and court precedent establishing that Congress intended employers to
bear the costs of compliance with standards. The Commission stated:
"[w]e agree with these courts of appeals that, based on the
legislative history, Congress intended that the cost of compliance with
OSHA would be uniformly reflected in the price of goods and services,
so as not to place the safety-conscious employer at a competitive
disadvantage." 15 O.S.H. Cas. (BNA) at 1565. Thus, Commissioner Van
Namee's view that it is irrelevant under the Act whether employers or
employees pay for protective devices finds no support in the statute
and has been rejected by subsequent court and Commission case law.
b. Neither the language of section 1910.132(b), nor the use of the
passive voice in section 1910.132(a) poses interpretive difficulties.
The view of Commissioner Van Namee that section 1910.132(a) cannot be
interpreted to require employers to "provide" personal protective
equipment because section 1910.132(b) contemplates the use of employee-
owned equipment, is similarly unsupported. If Commissioner Van Namee
were correct that reading section 1910.132(a) to require employers to
provide protective equipment would render section 1910.132(b)
superfluous, it could only be because section 1910.132(b) itself
imposes some duty upon employees to provide their own protective
equipment. See 1 O.S.H. Cas. (BNA) at 1550. However, section
1910.132(b), by its terms, does not require employees to "provide"
anything. As Commissioner Cleary correctly noted, section 1910.132(b)'s
introductory phrase "where employees provide their own protective
equipment . . ." is to be read, not as imposing a duty upon employees
to furnish equipment, but rather, as recognizing that employees may
sometimes wish to use their own equipment. See 1 O.S.H. Cas. (BNA) at
1552. Such use might occur, for example, if employee-owned equipment is
more comfortable or provides a greater degree of protection than would
be afforded by employer-provided equipment.19 Thus read, in
accordance with its terms, section 1910.132(b) poses no conflict with a
reading of section 1910.132(a) that requires employers to provide
personal protective equipment.
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\19\ As Deputy Assistant Secretary Stanley noted in his 1994
memorandum, section 1910.132(b) permits employees to use their own
equipment in some circumstances but does not specify that practice
as the norm. "[I]nstead, the standard underscores the employer's
obligation to assure that such equipment is adequate and that it is
properly maintained."
---------------------------------------------------------------------------
This result not only follows from the plain language of the
standard: it is also compelled by case law, decided subsequent to Budd,
rejecting the premise that the OSH Act imposes enforceable duties upon
employees. In Atlantic Gulf & Stevedores, the Third Circuit expressly
rejected Commissioner Van Namee's position, stated in his concurring
opinion in that case, that the Act imposes enforceable compliance
responsibilities upon employees. The court found that the "detailed
scheme of enforcement set out in sections 9, 10 and 17 of the Act . . .
is directed only against employers." 534 F.2d at 553. The court also
found section 5(b) of the Act, upon which Commissioner Van Namee relied
as a basis for his view, to be "essentially devoid of content." Id.
In USWA, the D.C. Circuit similarly concluded that the Act imposes
compliance obligations exclusively upon employers. It found, based on
the legislative history, that section 5(b) "is essentially an
exhortation to employees to cooperate in standards and is not meant to
diminish in any way the employer's compliance responsibilities or his
responsibility to assure compliance by his own employees." 647 F.2d at
1231 (quoting legislative history). This case law necessarily precludes
any reading of section 1910.132(b) that would impose a duty upon
employees to provide protective equipment.
Considered in the statutory context of exclusive employer
responsibilities, section 1910.132(a)'s language stating that personal
protective equipment "shall be provided" is equivalent to a direction
that "employers shall provide" the equipment. Though the paragraph
itself lacks precision, the Act leaves no room for doubt about which
actor--the employer or the employee--is to do the providing. Moreover,
the standard, considered in its entirety, provides further assurance
that employers are to provide protective equipment. Section
1910.132(d)(i)-(iii) requires employers to perform a hazard assessment
of their workplaces and to "select and have each employee use"
appropriate personal protective equipment. "Selection" and
"provision" are closely related functions that should logically be
performed by the same actor. It would be an anomalous reading that
required the employer to "select" items of PPE suitable for each of
its employees, yet required employees to "provide" such equipment.
All of these reasons compel rejection of Commissioner Van Namee's
position in favor of the Secretary's construction, accepted by
Commissioner Cleary, that the standard requires employers to provide
and pay for personal protective equipment when necessary to employee
safety.20
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\20\ Section 1910.132(a)'s general requirement that personal
protective equipment "shall be provided, used and maintained . . .
." is given additional specificity by the other standards in
Subpart I, Personal Protective Equipment. These standards make clear
that the duties listed in section 1910.132(a) fall upon employers.
See, e.g., section 1910.133(a) ("The employer shall ensure that
each employee uses appropriate eye or face protection . . .");
section 1910.134 (a)(2) ("Respirators shall be provided by the
employer when such equipment is necessary to protect the health of
the employee"). The active and passive voices are used
interchangeably in the standards comprising Subpart I.
---------------------------------------------------------------------------
c. The standard may be interpreted to require employer payment in
the absence of explicit cost-allocation language. Finally, the position
of Commissioner Cleary--that if the standard does not explicitly
allocate the costs of personal protective equipment, the Commission
cannot require employers to pay--must be rejected. Unquestionably, the
Secretary possesses the power authoritatively to interpret ambiguous
OSHA standards in an administrative adjudication before the Commission.
Martin v. OSHRC (CF& I Steel Corp.), 499 U.S. at 144, 151 (1991). The Secretary's
interpretation may, as in Budd, be embodied initially in a citation,
"a form expressly provided for by Congress." Id. at 157. It may also
be disseminated by other means, including interpretive rules and
enforcement guidelines. Id.
The Commission has held that the Secretary properly exercised her
delegated interpretive authority to construe the word "provide" to
mean "pay for." Erie Coke Corp. 15 O.S.H. Cas. (BNA) at 1563
(affirming Secretary's interpretation of coke oven emissions standard
to require employers to pay for flame resistant gloves). Therefore, the
Commission's authority is not limited to enforcement of explicit
regulatory requirements, as Commissioner Cleary supposed.
Summary and Conclusion
The uniform interpretation of section 1910.132 announced in STD 1-
6.6 is consistent with the standard's language and purpose, as well as
with the statute's clear design to place fiscal responsibility for
achievement of workplace safety on employers. The interpretation is
also consistent with Federal appellate decisions recognizing the
Secretary's statutory authority to charge employers with the cost of
regulatory requirements and with the Commission's precedent in Erie
Coke Corp. Finally, the interpretation is consistent with the result in
Budd that employers need not pay for safety shoes. To the extent that
the concurring rationales offered by Commissioners Van Namee and Cleary
in Budd address payment for other types of personal protective
equipment, the foregoing discussion demonstrates that the positions
taken by these Commissioners are contrary to case law decided since
Budd and to now-settled principles of regulatory construction.
The fact that some agency letters issued prior to Deputy Assistant
Secretary Stanley's memorandum suggest agency acquiescence in the
Commissioners' concurring opinions in Budd, does not render invalid the
Secretary's interpretation here. These letters must be considered in
the context of OSHA's overall approach to the payment issue in
rulemaking under section 6(b) of the Act, and the Agency's 1990
interpretive memorandum and citation under section 1910.132(a). In this
context, the letters reflected divergent positions within the Agency
concerning the employer's duty to pay for personal protective
equipment, rather than a settled agency interpretation. Significantly,
when these letters were sent out, OSHA had not developed an
authoritative, nationwide position on the allocation of such costs, Cf.
Drummond Coal Co. v. Hodel, 796 F.2d 503, 508 (D.C. Cir. 1986)
(regulatory interpretation given by some agency personnel in Alabama
and relied upon by some Alabama companies for four years did not amount
to a national policy which the Agency could not change without reasoned
explanation). See also Martin, 144 U.S. at 157 (interpretive rules and
agency enforcement guidelines contained in Field Operations Manual may
be consulted by reviewing courts to determine consistency of
interpretation advanced in enforcement litigation). In fact, OSHA did
not develop such a position until the field directive (STD 1-6.6) in
1994.
Furthermore, the inconsistent statements prior to 1994 resulted, in
substantial part, from the erroneous positions stated in the separate
concurring opinions in Budd: that section 1910.132(a) either imposes no
duty upon employers to provide personal protective equipment, or cannot
be interpreted to require employers to pay for such equipment absent
explicit cost allocation language.
The Supreme Court has observed that:
The Secretary is not estopped from changing a view she believes to
have been grounded upon a mistaken legal interpretation. Indeed, an
administrative agency is not disqualified from changing its mind;
and when it does, the courts still sit in review of the
administrative decision and should not approach the statutory
construction issue de novo and without regard to the administrative
understanding of the statutes.
Good Samaritan Hospital v. Shalala, 508 U.S. 402, 418 (1993). And in
the circumstances presented here, "where the Agency's interpretation
of [its regulation] is at least as plausible as competing ones, there
is little, if any, reason not to defer to its construction." Id. The
interpretation in STD 1-6.6 is reasonable, even if it is not the only
permissible reading of the standard.
X. List of Subjects in 29 CFR Parts 1910, 1915, 1917, 1918, and
1926
Construction industry; Eye and face protection; Foot protection;
General industry; Hand protection; Head protection; Longshoring
operations; Marine terminals; Occupational safety and health; Personal
protective equipment; Protective equipment; Safety glasses; Safety
shoes; Shipyard industry.
XI. Authority
This document was prepared under the authority of Charles N.
Jeffress, Assistant Secretary of Labor for Occupational Safety and
Health, U.S. Department of Labor, 200 Constitution Avenue, NW,
Washington, DC 20210.
Accordingly, pursuant to sections 4, 6, and 8 of the Occupational
Safety and Health Act of 1970 (29 U.S.C. 653,655, 657), section 107 of
the Construction Work Hours and Safety Standards Act (Construction
Safety Act) (40 U.S.C. 333), section 41 of the Longshore and Harbor
Workers Compensation Act (33 U.S.C. 941), Secretary of Labor's Order
No. 6-96 (62 FR 111), and 29 CFR part 1911, it is hereby proposed to
amend 29 CFR parts 1910, 1915, 1917, 1918, and 1926 as set forth below.
Signed at Washington, D.C., this 18th day of March, 1999.
Charles N. Jeffress,
Assistant Secretary of Labor.
XII. Proposed Standards
General Industry
PART 1910--[AMENDED]
29 CFR part 1910 is proposed to be amended as follows:
1. The authority citation for subpart I of 29 CFR part 1910 would
be revised to read as follows:
Authority: Sections 4, 6, and 8 of the Occupational Safety and
Health Act of 1970 (29 U.S.C. 653,655,657); Secretary of Labor's
Order No. 12-71 (36 FR 8754), No. 8-76 (41 FR 25059) No. 9-83 (48 FR
35736), No. 1-90 (55 FR 9033) and No. 6-96 (62 FR 111) as
applicable, and 29 CFR Part 1911.
2. A new paragraph (h) would be added to Sec. 1910.132, to read as
follows:
Sec. 1910.132 General requirements.
* * * * *
(h) Payment for protective equipment. All protective equipment,
including personal protective equipment (PPE), required in this part,
shall be provided by the employer at no cost to employees. Exception:
The employer is not required to pay for the logging boots required by
29 CFR Sec. 1910.266(d)(1)(v). The employer is also not required to pay
for safety-toe protective footwear, or for prescription safety eyewear,
provided that all three of the following conditions are met:
(1) The employer permits such footwear or eyewear to be worn off
the job-site;
(2) The footwear or eyewear is not used at work in a manner that
renders it unsafe for use off the job-site (for example, contaminated
safety-toe footwear would not be permitted to be worn off a job-site);
and
(3) Such footwear or eyewear is not designed for special use on the
job.
Shipyards
PART 1915--[AMENDED]
29 CFR Part 1915 is proposed to be amended as follows:
1. The Authority citation for Subpart I of 29 CFR Part 1915 would
be revised to read as follows:
Authority: Secs. 4, 6, and 8, Occupational Safety and Health Act
of 1970 (29 U.S.C. 653, 655, 657); section 41, Longshore and Harbor
Workers' Compensation Act (33 U.S.C. 941), Secretary of Labor's
Order No. 8-76 (41 FR 25059), No. 9-83 (48 FR 35756), No. 1-90 (55
FR 9033) and No. 6-96 (62 FR 111) as applicable; and 29 CFR part
1911.
2. A new paragraph (f) would be added to Sec. 1915.152, to read as
follows:
Sec. 1915.152 General Requirements.
* * * * *
(f) Payment for protective equipment. All protective equipment,
including personal protective equipment (PPE), required in this part,
shall be provided by the employer at no cost to employees.
Exception: The employer is not required to pay for safety-toe
protective footwear, or for prescription safety eyewear, provided that
all three of the following conditions are met:
(1) The employer permits such footwear or eyewear to be worn off
the job-site;
(2) The footwear or eyewear is not used at work in a manner that
renders it unsafe for use off the job-site (for example, contaminated
safety-toe footwear would not be permitted to be worn off a job-site);
and
(3) Such footwear or eyewear is not designed for special use on the
job.
Marine Terminals
PART 1917--[AMENDED]
29 CFR Part 1917 is proposed to be amended as follows:
1. The authority citation for Subpart E of 29 CFR part 1917 would
continue to read as follows:
Authority: Sec. 41, Longshore and Harbor Workers' Compensation
Act (33 U.S.C. 941); Secs. 4, 6, and 8 of the Occupational Safety
and Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of
Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48
FR 35736), or 6-96 (62 FR 111), as applicable; and 29 CFR part 1911.
Section 1917.28 also issued under 5 U.S.C. 553.
2. A new Sec. 1917.96 would be added to supbart E, to read as
follows:
Sec. 1917.96 Payment for protective equipment.
All protective equipment, including personal protective equipment
(PPE), required in this part, shall be provided by the employer at no
cost to employees. Exception: The employer is not required to pay for
safety-toe protective footwear, or for prescription safety eyewear,
provided that all three of the following conditions are met:
(a) The employer permits such footwear or eyewear to be worn off
the job-site;
(b) The footwear or eyewear is not used at work in a manner that
renders it unsafe for use off the job-site (for example, contaminated
safety-toe footwear would not be permitted to be worn off a job-site);
and
(c) Such footwear or eyewear is not designed for special use on the
job.
Longshoring
PART 1918--[AMENDED]
29 CFR part 1918 is proposed to be amended as follows:
1. The authority citation for 29 CFR part 1918 would be revised to
read as follows:
Authority: Secs. 4, 6, and 8 of the Occupational Safety and
Health Act, 29 U.S.C. 653, 655, 657; Walsh-Healey Act, 41 U.S.C. 35
et seq.; Service Contract Act of 1965, 41 U.S.C. 351 et seq.; Sec.
107, Contract Work Hours and Safety Standards Act (Construction
Safety Act), 40 U.S.C. 333; Sec. 41, Longshore and Harbor Workers'
Compensation Act, 33 U.S.C. 941; National Foundation of Arts and
Humanities Act, 20 U.S.C. 951 et seq.; Secretary of Labor's Order
No. 6-96 (62 FR 111) and 29 CFR part 1911.
2. A new Sec. 1918.106 would be added, to read as follows:
Sec. 1918.106 Payment for protective equipment.
All protective equipment, including personal protective equipment
(PPE), required in this part, shall be provided by the employer at no
cost to employees. Exception: The employer is not required to pay for
safety-toe protective footwear, or for prescription safety eyewear,
provided that all three of the following conditions are met:
(a) The employer permits such footwear or eyewear to be worn off
the job-site;
(b) The footwear or eyewear is not used at work in a manner that
renders it unsafe for use off the job-site (for example, contaminated
safety-toe footwear would not be permitted to be worn off a job-site);
and
(c) Such footwear or eyewear is not designed for special use on the
job.
Construction
PART 1926--[AMENDED]
29 CFR part 1926 is proposed to be amended as follows:
1. The authority citation for subpart E of part 1926 would be
revised to read as follows:
Authority: Sec. 107, Contract Work Hours and Safety Standards
Act (Construction Safety Act) (40 U.S.C. 333); Secs. 4, 6, and 8 of
the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655,
657); Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR
25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033), or 6-96 (62 FR 111),
as applicable; and 29 CFR part 1911.
2. A new paragraph (d) would be added to Sec. 1926.95, to read as
follows:
Sec. 1926.95 Criteria for personal protective equipment.
* * * * *
(d) Payment for Protective Equipment. All protective equipment,
including personal protective equipment (PPE), required in this part,
shall be provided by the employer at no cost to employees. Exception:
The employer is not required to pay for safety-toe protective footwear,
or for prescription safety eyewear, provided that all three of the
following conditions are met:
(1) The employer permits such footwear or eyewear to be worn off
the job-site;
(2) The footwear or eyewear is not used at work in a manner that
renders it unsafe for use off the job-site (for example, contaminated
safety-toe footwear would not be permitted to be worn off a job-site);
and
(3) Such footwear or eyewear is not designed for special use on the
job.
[FR Doc. 99-7114 Filed 3-30-99; 8:45 am]
BILLING CODE 4510-26-P

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